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THE PEOPLE OF THE STATE
OF SOUTH DAKOTA IN THE
INTEREST OF T.I. AND T.I.,

Minor Children,
AND CONCERNING

C.I. AND D.B.,
Respondents,
and
SISSETON-WAHPETON SIOUX
TRIBE AND YANKTON SIOUX TRIBE,

Intervenors.

[2005 SD 125]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Fifth Judicial Circuit
Brown County, South Dakota

Hon. Scott P. Myren, Judge

CHRISTY GRIFFIN SERR
Aberdeen, South Dakota

Attorney for appellant
Mother C.I.

WILLIAM D. GERDES

Aberdeen, South Dakota

Attorney for appellant
Father D.B.

KELLY MARNETTE
Aberdeen, South Dakota

Attorney for appellee
Minor Children

LAWRENCE E. LONG
Attorney General

ANN M. HOLZHAUSER
Assistant Attorney General
Pierre, South Dakota

Attorneys for appellee
State of South Dakota

Considered on Briefs on November 7, 2005 Opinion Filed 12/21/2005
#23581, #23587, #23597
KONENKAMP, Justice
[¶1.] In this abuse and neglect proceeding, governed by the provisions of the Indian Child Welfare Act (ICWA), the circuit court declined transfer of jurisdiction to tribal court and terminated the mother and father’s parental rights.  We affirm.
Background
[¶2.] The mother and father are the biological parents of T.I. (Son 1), born August 18, 1997, and T.I. (Son 2), born March 2, 1999.  At the commencement of these proceedings, Son 1 was a member of the Yankton Sioux Tribe (YST) and Son 2 was eligible for enrollment in YST.  Also, both children were eligible for enrollment, but were not actually enrolled, in the Sisseton-Wahpeton Sioux Tribe (SWST).
[¶3.] The state filed two abuse and neglect petitions against the mother and father regarding these children.  This appeal concerns the second petition, but the facts surrounding the first are relevant. On February 15, 2002, Son 2, then age two, was spotted walking alone on Main Street in Aberdeen at 10:15
p.m.  When law enforcement officers found him, he had no coat and had only slippers on his feet. The mother was questioned and stated that she had an apartment, but no electricity, food, or furniture. She also disclosed her use of alcohol.  The Department of Social Services (DSS) substantiated its concerns and the first petition alleging abuse and neglect was filed.  The children were placed in protective custody and were later placed with the paternal grandmother in Waubay in March 2002.
[¶4.] The parents denied the allegations of abuse and neglect and an adjudicatory hearing was set for June 2002. YST and SWST were given notice and SWST petitioned to transfer in May 2002.  The adjudication was continued to October, but at the June hearing the mother opposed transfer to SWST.  She requested that her children be removed from the grandmother’s home, claiming alcohol was being used excessively there.  Transfer to SWST was denied and the children were returned to foster care with DSS. The adjudicatory hearing concerning this first petition was held on October 9, 2002, and the circuit court declined to find the children abused and neglected.  The first petition was dismissed and the children were returned to the mother and father.
[¶5.] The remaining factual and procedural background pertains to the second petition and the resulting appeal.  DSS became involved again in September 2003, after it had received “reports of domestic violence, lack of food, and excessive alcohol consumption in the home.

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