AN ACT
ENTITLED, An Act to
revise certain provisions regarding notice to a tribe of a child custody
proceeding subject to the Indian Child Welfare Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 26-7A-15 be amended to read as follows:
26-7A-15. The officer or party who takes a child into temporary custody, with or without a court order, except under a court order issued during a noticed hearing after an action has been commenced, shall immediately, without unnecessary delay in keeping with the circumstances, inform the child's parents, guardian, or custodian of the temporary custody and of the right to a prompt hearing by the court to determine whether temporary custody should be continued. If the child's parents, guardian, or custodian cannot be located after reasonable inquiry, the officer or party taking temporary custody of the child shall report that fact and the circumstances immediately to the state's attorney. The state's attorney shall notify the child's parents, guardian, or custodian, without unnecessary delay, of the time, date, and place of the temporary custody hearing. If the temporary custody hearing concerns an apparent abused or neglected Indian child, the state's attorney or Department of Social Services shall make reasonable efforts to inform the Indian custodian and the designated tribal agent for the Indian child's tribe, if known, of the time, date, and place of the temporary custody hearing. The information regarding the temporary custody hearing may be provided to the Indian custodian or the designated tribal agent orally or in writing, including by telephone or facsimile. The hearing shall be held within forty-eight hours if it concerns any apparent abused or neglected child or if it concerns any apparent delinquent child pursuant to § 26-8C-3 or within twenty-four hours if it concerns any apparent child in need of supervision pursuant to § 26- 8B-3, excluding Saturdays, Sundays, and court holidays, after taking the child into temporary custody, unless extended by order of the court. 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 hearing. As used in this section, the terms, Indian child, Indian custodian, and Indian child's tribe, are defined as in 25 U.S.C. § 1903, as amended to January 1, 2005.
Section 2. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as follows:
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 26-7A-15 be amended to read as follows:
26-7A-15. The officer or party who takes a child into temporary custody, with or without a court order, except under a court order issued during a noticed hearing after an action has been commenced, shall immediately, without unnecessary delay in keeping with the circumstances, inform the child's parents, guardian, or custodian of the temporary custody and of the right to a prompt hearing by the court to determine whether temporary custody should be continued. If the child's parents, guardian, or custodian cannot be located after reasonable inquiry, the officer or party taking temporary custody of the child shall report that fact and the circumstances immediately to the state's attorney. The state's attorney shall notify the child's parents, guardian, or custodian, without unnecessary delay, of the time, date, and place of the temporary custody hearing. If the temporary custody hearing concerns an apparent abused or neglected Indian child, the state's attorney or Department of Social Services shall make reasonable efforts to inform the Indian custodian and the designated tribal agent for the Indian child's tribe, if known, of the time, date, and place of the temporary custody hearing. The information regarding the temporary custody hearing may be provided to the Indian custodian or the designated tribal agent orally or in writing, including by telephone or facsimile. The hearing shall be held within forty-eight hours if it concerns any apparent abused or neglected child or if it concerns any apparent delinquent child pursuant to § 26-8C-3 or within twenty-four hours if it concerns any apparent child in need of supervision pursuant to § 26- 8B-3, excluding Saturdays, Sundays, and court holidays, after taking the child into temporary custody, unless extended by order of the court. 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 hearing. As used in this section, the terms, Indian child, Indian custodian, and Indian child's tribe, are defined as in 25 U.S.C. § 1903, as amended to January 1, 2005.
Section 2. That chapter 26-7A be amended by adding thereto a NEW SECTION to read as follows:
As used in this chapter, the term, designated tribal agent, means the agent, agency, or entity
designated by the tribe, through tribal code or resolution, to receive notices of child custody
proceedings subject to the Indian Child Welfare Act. The tribe may provide, in writing, to the
director of the Division of Child Protection Services, Department of Social Services, the name or
title, address, telephone number, and facsimile number, if applicable, of the designated agent. The
department shall make the information available electronically by posting the information on the
department's website not later than ten business days after the information is received by the director.
If a tribe does not designate a tribal agent for receipt of notice, notice shall be given in accordance
with 25 C.F.R. 23.12.
Section 3. That § 26-7A-15.1 be amended to read as follows:
26-7A-15.1. In any proceeding under chapters 26-7A, 26-8A, or 26-8B, to which the terms of the "Indian Child Welfare Act", 25 U.S.C. § 1901 et seq., as amended to January 1, 2005, apply:
Section 3. That § 26-7A-15.1 be amended to read as follows:
26-7A-15.1. In any proceeding under chapters 26-7A, 26-8A, or 26-8B, to which the terms of the "Indian Child Welfare Act", 25 U.S.C. § 1901 et seq., as amended to January 1, 2005, apply:
(1)
If the state's attorney knows or has reason to know that an Indian child is involved, the
state's attorney shall notify the parent or Indian custodian and the Indian child's tribe, if
known, of the pending proceedings and of their right of intervention. The notice shall be
sent by registered mail with return receipt requested but may be personally served on any
person entitled herein to receive notice in lieu of mail service. The notice to the Indian
child's tribe shall be sent to the designated tribal agent. However, if the tribe appears by
counsel or by a representative of the tribe pursuant to
§
26-8A-33, the notice shall be sent
to counsel or to the representative, as applicable. If the identity or location of the parent
or Indian custodian and the Indian child's tribe cannot be determined, the notice shall be
given to the United States Secretary of the Interior and to the area director for the Bureau
of Indian Affairs in like manner, who have fifteen days after receipt to provide the
requisite notice to the parent or Indian custodian and the tribe;
(2)
The state's attorney shall provide the notice prior to any adjudicatory hearing and prior to
any final dispositional hearing in which the state seeks termination of parental rights of
one or both parents or termination of the rights of the Indian custodian. However, upon
intervention, the parent, tribe, or Indian custodian is entitled to notice in the manner
authorized by the Rules of Civil Procedure and chapters 26-7A and 26-8A. The notice
shall be served on counsel for the tribe or the representative for the tribe pursuant to
§
26-
8A-33, as applicable;
(3)
The court shall establish in the record that a notice of the proceeding was provided as
required in this section. No foster care placement or termination of parental rights
proceedings may be held until at least ten days after receipt of the foregoing notice by the
parent or Indian custodian and the tribe or the Secretary. The parent or Indian custodian
or the tribe shall, upon request, be granted up to twenty additional days to prepare for the
proceeding;
(4)
The notice required in this section shall be written in clear and understandable language
and shall include the following:
(a)
The name and tribal affiliation, if known, of the Indian child;
(b)
A copy of the petition unless the notice is served by publication pursuant to § 26-
7A-48;
(c)
The name and address of the state's attorney;
(d)
A statement listing the rights of the Indian child's parents, Indian custodians, and
tribes, under the Indian Child Welfare Act, 25 U.S.C. § 1901, et. seq., as amended
to January 1, 2005, including:
(I)
The right of a Indian custodian or the Indian child's tribe to intervene in a
proceeding for the foster care placement of, or termination of parental rights
to, the Indian child;
(ii)
The right to file a motion to transfer the proceeding to the tribal court of the
Indian child's tribe;
(iii)
The right to be granted up to twenty days from the receipt of the notice to
prepare for the proceeding; and
(iv)
The right to request that the court grant further extensions of time;
(e)
If the petition alleges the child to be an abused or neglected child, a statement that
the termination of parental or custodial rights is a possible remedy under the
proceedings;
(f)
A statement that if the Indian child's parents or Indian custodian are unable to
afford counsel, counsel may be appointed to represent them;
(g)
A statement in the notice to the tribe that the information contained in the notice,
petition, pleading, or other documents are confidential; and
(h)
The location, mailing address and telephone number of the court.
The original or a copy of each notice sent pursuant to this section shall be filed with the
court together with any return receipts or other proof of service;
(5)
Each party may examine all reports or other documents filed with the court upon which
any decision with respect to such action may be based.
As used in this section, the terms, Indian, Indian child, parent, Indian custodian, tribe, Indian
child's tribe, foster care placement, termination of parental rights, and secretary, are defined as in 25
U.S.C. § 1903, as amended to January 1, 2005.
An Act to revise certain provisions regarding notice to a tribe of a child custody proceeding subject to the Indian Child Welfare Act.
An Act to revise certain provisions regarding notice to a tribe of a child custody proceeding subject to the Indian Child Welfare Act.
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I certify that the attached Act originated in the
HOUSE as
Bill
No.
1051
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____________________________
Chief Clerk
Chief Clerk
____________________________
Speaker of the House
Speaker of the House
Attest:
____________________________
Chief Clerk
Chief Clerk
____________________________
President of the Senate
Attest:
____________________________
Secretary of the Senate
Secretary of the Senate
House
Bill
No.
1051
File No. ____
Chapter No. ______=========================
Received at this Executive Office this _____ day of _____________ ,
File No. ____
Chapter No. ______
Received at this Executive Office this _____ day of _____________ ,
20____ at ____________ M.
By _________________________
for the Governor
for the Governor
The attached Act is hereby
approved this ________ day of
______________ , A.D., 20___
____________________________
Governor
Governor
STATE OF SOUTH DAKOTA,
ss.
Office of the Secretary of State
Filed ____________ , 20___
at _________ o'clock __ M.
____________________________
Secretary of State
Secretary of State
By _________________________
Asst. Secretary of State
