| The following story was written and reported by Christina Rose, Native Sun News Associate Editor. All content © Native Sun News.
A child being removed from the family by a DSS worker happens more than 700 times a year in Pennington County. ILLUSTRATION BY/Denise Giago
Pennington County: ICWA abuses ‘shocking’
By Christina Rose
Native Sun News Associate Editor
RAPID CITY—The alleged abuses of the Indian Child Welfare Act in the Pennington County court system has been called “shocking” by two attorneys. According to Stephen Pevar, attorney for the ACLU, “What happened in the Pennington County Courts is something you would expect in a Third World Country.”
Pevar has been an ACLU attorney for 36 years and said he has never seen such blatant violations in his career. In researching the case, he said, “No one has been able to find another instance where they strip the kids from the family and don’t have a hearing.”
On March 21, a federal class action lawsuit was filed in the District Court of South Dakota, brought about by the Oglala Sioux Tribe and the Rosebud Sioux Tribe. The case focuses on three Lakota families, individually and as a class of all Indian families in Pennington County.
The violations include ruling against Indian families without presenting any evidence, ignoring due process and waiting as long as possible to hold a hearing. There was also no evidence that the Department of Social Services complied with the ICWA law that requires “active efforts” be made “to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.”
Pevar, the ACLU legal staff, and Attorney Dana Hanna, representing the Oglala Sioux Tribe and the Rosebud Sioux Tribe, said that in the 16 month investigation, the court virtually always sided with the Department of Social Services and ordered the removal of Indian children from their families. As far as they have seen, “These hearings are, as Justice Sabers stated in a related context, “a rubber stamp formality.”
Citing many legal precedents where the sacredness of family is to be valued by the court, the lawsuit showed that Native families in Pennington County were offered fewer rights than was the owner of a car.
According to the complaint, a car had been impounded by local officials and the owner was given a hearing seven days later. However, the court ruled that the seven day delay in returning the car was unconstitutional, yet the court routinely kept Indian children from their families for at least 60 days.
During the 48-Hour Hearing, the Guidelines state that the court must determine whether the agency has made active efforts to preserve the family. At the end of the hearing, the court must determine whether or not removing the child from the home would be contrary to the child’s welfare.
However, according to the lawsuit, those considerations are “never” mentioned in the courtroom during the 48-Hour hearing. In fact, one lawsuit Plaintiff, Madonna Pappan, had 62 hearings, but was never allowed to present any witness testimony, never allowed to see the petition filed against the family, never allowed to see the statement against them, never allowed to comment on whether custody was the least restrictive alternative, never allowed to comment on whether the state was engaged in any efforts to avoid taking her children, and never allowed to obtain an attorney to resume the hearing in a timely manner.
Attorney Hanna said, “What I saw shocked me. There was nothing approaching due process. There was never an attorney during the 48-Hour Hearing except the State’s Attorney. Some of those hearings lasted 2 minutes before I got involved.”
In one hearing, Hanna said that the Presiding Judge of the 7th Circuit Judge Davis “wouldn’t allow me to discuss the facts of the case. The woman had a reason she was not in the home and I wanted her to tell the court why the kids shouldn’t go into the foster care. The judge said, ‘We are not going to listen to the reason why the children are being removed.”
When Hanna asked Judge Davis to return the children to the mother because no evidence had been presented, Judge Davis denied the motion. When Hanna then requested a hearing to show evidence in a week or reasonably near future Judge Davis again denied the motion and ruled against the mother in all issues. The children were removed from their family for a minimum of 60 days even though no evidence had been shown.
“There has to be an evidentiary hearing,” Hanna insisted. “Parents have a right to be represented by an attorney, and they were always denied. The state statute requires there to be some evidence, and what an attorney says is not evidence, there needs to be some documentation.” But Hanna found that at the end of virtually every 48-Hour hearing, placing the children in foster care was found to be the least restrictive action. “This is after the court has heard literally no evidence whatsoever,” Hanna said.
According to ACLU’s Pevar, there was nothing that prevented the courts from holding the hearing as soon as 10 days after the 48-Hour Hearing, but instead, they always waited 60 days. An ICWA provision allows 10 days for a hearing to give the parents time to gather their evidence or meet the court’s requirements. If the tribe requested it, the hearing could be delayed another 10 days. At most, the expectations of the ICWA was that a hearing would be held within 20 days.
Pevar said, “The state law says you have to hold the hearing within 60 days, but there is nothing that prevents the state from holding the hearing earlier. They wait until the maximum time to hold the hearing.”
One of the most pressing intentions of the ICWA was to be sure that families were given every opportunity to either fix a situation or seek remediation and to avoid removing the children from the home or to bring the children home as quickly as possible. However, Hanna said, “They are not making meaningful efforts to resolve anything before they take the kids.”
In a telephone interview, Attorney Hanna said he has seen no evidence that DSS workers are even aware of the harm they are causing when they remove children from a home. Further, DSS tells parents they are not to tell children why they were removed and warns children if they become emotional during a visit with parents, those visits will be discontinued.
“What we see is a total ignorance or indifference on the part of state authorities. Children, all children, but perhaps especially Indian child, suffer trauma, extreme separation anxiety and real fear when they are removed from their family home and placed with strangers,” Hanna said.
The lawsuit offers numerous studies supporting Hanna’s claims, including, “Children are thrust into alien environments, separated from parents, siblings, and all else familiar, with little if any idea of why they have been taken there.” Further, even a short separation from family will hurt a child’s well-being, cause distress, despair and result in self-blame that could last a lifetime.
Yet the lawsuit states that Indian children suffer “by policy, practice and custom through the Pennington County Courts and DSS workers who never comply with aspects of due process in any meaningful manner at the 48-Hour hearings.”
An additional grievance states that parents are told by the judge that if they agree to work with DSS, the court could enter an order that would result in a quicker return of the children. Unfortunately, when parents agree to work with DSS they waive their rights to “adequate notice or a timely hearing.”
The court is accused of never advising the families about their rights which often resulted in greater delays and problems for the families. According to the lawsuit, these actions are coercive since DSS had already taken the children and the families were anxious to do anything to get their children back.
Had the families been advised of their rights, they might have seen that the court was obligated to do what they were promising anyway. By “agreeing to work with DSS” they authorized DSS to retain their children for at least another 60 days. “The court’s inducement is a cruel hoax,” reads the complaint.
Hanna said, “This was not a knee-jerk case. We researched, gathered transcripts, and discussed among ourselves legal cases for a year to develop the case.
They are not making meaningful efforts to resolve anything before they take the kids. What DSS does again and again is take a problem and create a crisis.”
(Contact Christina Rose at firstname.lastname@example.org)
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