80th Legislative Session _ 2005

Committee: House Judiciary
Wednesday, February 16, 2005

                                            P - Present
                                            E - Excused
                                            A - Absent

Roll Call
P    Gillespie
P    Haley
P    Hennies
P    Jensen
P    Michels
P    Murschel
P    O'Brien
P    Roberts
P    Sebert
P    Tornow
P    Van Norman
P    Hunt, Vice-Chair
P    Cutler, Chair

OTHERS PRESENT: See Original Minutes

The meeting was called to order by Chair Cutler

MOTION:     TO APPROVE THE MINUTES OF FEBRUARY 14, 2005

Moved by:    Sebert
Second by:    Hunt
Action:    Prevailed by voice vote.

         SB 25: revise the purposes for which the extraordinary litigation fund may be used.

Presented by:    Judy Payne, Bureau of Administration
Proponents:    Charlie McGuigan, Attorney General

MOTION:     DO PASS SB 25



Moved by:    Michels
Second by:    Hunt
Action:    Prevailed by roll call vote.(12-0-1-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Michels, Murschel, O'Brien, Roberts, Sebert, Tornow, Hunt, Cutler

Excused:    Van Norman

         HB 1226: establish certain provisions regarding the custody and placement of Indian children.

Presented by:    Representative Jim Bradford
Proponents:    Ann Holzhauser, Department of Social Services
        Representative Paul Valandra
        Chuck Schroyer, SD States Attorneys Assn.
        Mary Ann Bearheels McCowen, Rosebud Sioux Tribe
Other testimony was given on HB1226 at the February 14, 2005 meeting.

MOTION:     AMEND HB 1226

1226ra
     On the printed bill, delete everything after the enacting clause and insert:

"      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 or an apparent Indian child in need of supervision pursuant to § 26-8B-3, the state's attorney or Department of Social Services shall make reasonable efforts to inform the Indian custodian and 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 Indian child's tribe 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 Indian child's tribe, 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:

     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. sec. 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. 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 in like manner, who has 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 such 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;

             (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 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)    A statement of the potential legal consequences of an adjudication on future custodial rights of the Indian child's parents or Indian custodians;
             (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.

     Section 3. That § 26-7A-55 be amended to read as follows:

     26-7A-55.   If all necessary parties admit the allegations contained in the petition and the court accepts the admissions, the court may find, conclude and make a decision as to adjudication of the child under the applicable provisions of chapter 26-8A, 26-8B, or 26-8C. The court may then proceed with the dispositional phase of the proceedings without conducting a formal adjudicatory hearing on the petition with the concurrence of all parties. However, at the request of any party or if required by the court, the court shall set a later time and date for the dispositional hearing. The court shall then determine interim dispositional arrangements concerning the child and the parties.

     If the petition is not admitted by all necessary parties, including the child, if appropriate, or if the petition is denied by any necessary party or the child, if appropriate, the court shall proceed with the adjudicatory hearing on the petition , if notice has been given as required by section 2 of this Act, if applicable, or schedule the adjudicatory hearing for a later time and date.
     If the advisory hearing is adjourned and continued or if the advisory hearing is completed and the adjudicatory hearing on the petition is scheduled for a later time and date, the court shall make an interim order regarding temporary custody of the child as determined by the court.

     Section 4. The form of the notice provided for in section 2 of this Act is as follows:

STATE OF SOUTH DAKOTA )
) ss
COUNTY OF ______________)  
IN CIRCUIT COURT

_____JUDICIAL CIRCUIT  

   
THE PEOPLE OF THE STATE OF    )
SOUTH DAKOTA IN THE INTEREST    )
OF____________________________,    )
MINOR CHILD(REN), AND            )
CONCERNING __________________,    )
________________________________,    )
RESPONDENTS.                    )  
Juv. No.___________

NOTICE TO PARENT, CUSTODIAN,
OR INDIAN TRIBE OF CHILD CUSTODY
PROCEEDINGS (ICWA)  

TO:    [Name and Address of the Parent /Custodian/Tribe]:

    PLEASE TAKE NOTICE that, pursuant to the Indian Child Welfare Act of 1978 (25 U.S.C. § 1912, et. seq.), a child custody proceeding is now pending in the above-named court. The child(ren) who (is/are) the subject of this proceeding (is/are) believed to be (an) "Indian child(ren)" (as defined in 25 U.S.C. § 1903(4)) affiliated with the _________ Tribe.

    A HEARING HAS BEEN SCHEDULED FOR _____ [date] AT _____ [time] (a.m./p.m.) (CST/MST) IN THE COURTROOM OF THE _____ COUNTY COURTHOUSE, _____, SOUTH DAKOTA. A copy of the Petition by which this proceeding was initiated is attached.
    
You are further notified that:

             1.    The following information is known regarding the parents, grandparents and Indian custodians:
             a.    The names and last known addresses of the parents, grandparents and great grandparents or Indian custodians are as follows:

             b.    Any maiden, married and former names and aliases are as follows:

             c.    Birthdates and places of birth and death are as follows:

             d.    Tribal enrollment number(s):

             2.    You, as the parent(s) or Indian custodian, and the child(ren)'s tribe, may have a right to intervene in these proceedings.

             3.    If you, as the parent(s) or Indian custodian, are unable to afford an attorney, an attorney may be appointed to represent you. If you desire a court-appointed attorney, you should contact the court using the information provided in paragraph 7 below.

             4.    You may have the right, as the parent(s), Indian custodian, or Indian tribe, to have, upon request, 20 additional days to prepare for the hearing. If you desire additional time to prepare for the hearing, you should contact the court using the information provided in paragraph 7 below.

             5.    You may have the right, as (a) parent(s), Indian custodian, or Indian tribe, to petition this Court for transfer of the proceeding to tribal court.

             6.    The Petitioner in this action is the State of South Dakota, and the name and address of the attorney for the Petitioner is: _____, State's Attorney for _____ County, _____, South Dakota.

             7.    The Court's phone number is _____. The Court's mailing address is _____. Please report to the Court or to the State all information you have as to the status of the above-named child(ren), including the eligibility/membership of the child(ren) or the parent(s) in any Indian tribe.

             8.    If you are the child(ren)'s parent, it is possible that your parental rights will be terminated in this proceeding. If your parental rights are terminated in this proceeding, you will no longer be able to exercise parental, custodial or any other rights with regard to the child(ren).

             9.    Since custody proceedings are conducted on a confidential basis, you are requested to keep confidential all information contained in this Notice.

Dated this _____ day of _____, 20 ____.

                        _________________________________
                        State's Attorney"



Moved by:    Roberts
Second by:    Hunt
Action:    Prevailed by voice vote.

MOTION:     DO PASS HB 1226 AS AMENDED

Moved by:    Michels
Second by:    Hunt
Action:    Prevailed by roll call vote.(12-0-1-0)

Voting Yes:    Gillespie, Haley, Hennies, Michels, Murschel, O'Brien, Roberts, Sebert, Tornow, Van Norman, Hunt, Cutler

Excused:    Jensen

         SB 26: provide monetary penalties for failure of tobacco distributors and wholesalers to comply with certain cigarette regulations.

Presented by:    Charlie McGuigan, Attorney General's Office
Proponents:    Gary Viken, Secretary, Department of Revenue and Regulation

MOTION:     DO PASS SB 26

Moved by:    Hunt
Second by:    Sebert
Action:    Prevailed by roll call vote.(12-0-1-0)

Voting Yes:    Gillespie, Haley, Hennies, Michels, Murschel, O'Brien, Roberts, Sebert, Tornow, Van Norman, Hunt, Cutler

Excused:    Jensen

         SB 143: adopt the Uniform Environmental Covenants Act.

Presented by:    Senator Dave Knudson
Proponents:    Michael Demersseman, self, Rapid City, SD
Opponents:    Larry Gabriel, Secretary, Department of Agriculture

MOTION:     DO PASS SB 143

Moved by:    Sebert
Second by:    O'Brien
Action:    Prevailed by roll call vote.(10-3-0-0)

Voting Yes:    Gillespie, Haley, Hennies, Michels, Murschel, O'Brien, Roberts, Sebert, Tornow, Cutler

Voting No:    Jensen, Van Norman, Hunt

         HB 1129: provide for certain revisions in the Criminal Code Revision Commission bill.

MOTION:     TO TABLE HB 1129

Moved by:    Hennies
Second by:    Roberts
Action:    Prevailed by roll call vote.(13-0-0-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Michels, Murschel, O'Brien, Roberts, Sebert, Tornow, Van Norman, Hunt, Cutler

         HB 1130: effect certain provisions of the Criminal Code Revision Commission bill.

MOTION:     TO TABLE HB 1130

Moved by:    Hennies
Second by:    Murschel
Action:    Prevailed by roll call vote.(12-0-1-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Murschel, O'Brien, Roberts, Sebert, Tornow, Van Norman, Hunt, Cutler

Excused:    Michels

         SB 178: provide for the creation of county interdisciplinary child information teams and to regulate their memberships, authority, and responsibilities.

Presented by:    Senator Lee Schoenbeck
Proponents:    Dick Tieszen, SD Sheriffs
        Ann Holzhauser, Department of Social Services
        Susan Randall, SD Coalition For Children
        Roger Telllinghuisen, self



MOTION:     AMEND SB 178

178ra
     On page 3, line 16 of the printed bill, after " liability " insert ", arising out of any good faith act relevant to participation on any county interdisciplinary child information team,".

Moved by:    Hunt
Second by:    Gillespie
Action:    Prevailed by voice vote.

MOTION:     AMEND SB 178

178rb
     On page 3, line 17 of the printed bill, after " notice to " insert "and involvement of".

Moved by:    Murschel
Second by:    Gillespie
Action:    Failed by roll call vote.(4-7-2-0)

Voting Yes:    Gillespie, Murschel, Roberts, Van Norman

Voting No:    Haley, Hennies, Jensen, O'Brien, Sebert, Hunt, Cutler

Excused:    Michels, Tornow

MOTION:     DO PASS SB 178 AS AMENDED

Moved by:    O'Brien
Second by:    Hennies
Action:    Prevailed by roll call vote.(11-0-2-0)

Voting Yes:    Gillespie, Haley, Hennies, Jensen, Murschel, O'Brien, Roberts, Sebert, Van Norman, Hunt, Cutler

Excused:    Michels, Tornow

MOTION:     ADJOURN

Moved by:    Gillespie


Second by:    Jensen
Action:    Prevailed by voice vote.

Diane Mellan

____________________________

Committee Secretary
Joni M. Cutler, Chair


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