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THE PEOPLE OF THE STATE OF SOUTH DAKOTA IN THE INTEREST OF O.S., Child(ren), and concerning S.E.H.,
Appellant,
and M.S.,
Interested Party.
[2005 SD 86]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Seventh Judicial Circuit
Pennington County, South Dakota

Hon. Jeff W. Davis, Judge

THOMAS M. DIGGINS
Pennington County Public Defender’s Office
Rapid City, South Dakota

Attorneys for appellant
Mother S.E.H.

LAWRENCE E. LONG
Attorney General

KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota

Attorneys for appellee
State of South Dakota.

Considered on Briefs on May 23, 2005

Opinion Filed 7/13/2005

#23420
MEIERHENRY, Justice
[¶1.] This is an appeal from a Final Dispositional Order terminating Mother’s parental rights to her minor child, O.S., a member of the Cheyenne River Sioux Tribe.
FACTUAL BACKGROUND
[¶2.] The termination of Mother’s parental rights to O.S. was ultimately due to her alcoholism. Mother had seven children prior to O.S. and had been involved with social services in another state. Her parental rights to one of the children had been terminated.  The other children were being raised by their grandmothers.  Mother became aware that she was four months pregnant with O.S. during an involuntary commitment to a detoxification facility.  The Department of Social Services (DSS) entered into a case plan with her to address her alcohol dependence.  She was placed in an alcohol treatment facility for the remainder of her pregnancy.
[¶3.] She gave birth to O.S., a Native American child, in November of 2002. Fetal Alcohol Effect was suspected but not confirmed.  Mother and child remained at the treatment facility until February 2003, when Mother left against the staff’s advice.  Within three days, Mother relapsed.  She then re-entered the facility and remained there until being discharged on April 1, 2003.  Within a month after her discharge, she again relapsed.  She checked herself back into the detoxification facility, at which time O.S. was removed from her custody.  The next several months were fraught with relapses culminating in a petition to terminate Mother’s parental rights to O.S.
[¶4.] On August 4, 2003, O.S. was adjudicated as an abused and neglected child.  The Cheyenne River Sioux Tribe (CRST) intervened on August 11, 2003.  See 25 USC § 1911(c).  A number of review hearings followed.  Throughout this process, the DSS social worker assigned to the case made various efforts to reunite the family, all of which were unsuccessful.  A final dispositional hearing to terminate parental rights was held on July 12, 2004.
[¶5.] Because of O.S.’s status as a Native American, the Indian Child Welfare Act (ICWA) applied to the proceedings.  Pursuant to ICWA, the testimony of a qualified expert witness was required to terminate parental rights.  25 USC § 1912(f).  To meet this requirement the State offered the testimony of Sarah Trimble, who had been a social worker with DSS for over four years. The trial court qualified Trimble as an expert witness over the objection of Mother and CRST.  Trimble testified that continued custody of O.S. by Mother would likely result in serious emotional or physical damage to O.S.
[¶6.] The Tribe sought to offer testimony from its ICWA expert by telephone.  The Tribe’s plan to have its expert telephonically testify was not brought before the court until the morning of hearing. The court denied the telephonic testimony because it was untimely offered and because the judge felt it would have been difficult to judge credibility over the telephone.  Ultimately, the trial court terminated the parental rights of Mother.  Mother appeals and raises three issues.

ISSUES
I. Whether the trial court erred by qualifying the State’s ICWA expert.
II. Whether the trial court erred by refusing to allow the intervening Tribe’s proposed ICWA expert witness to appear telephonically at the final disposition hearing.
III. Whether the trial court erred by finding that serious emotional or physical damage would occur if
O.S. were returned to the care of Mother.

STANDARD OF REVIEW
[¶7.] In abuse and neglect cases where termination of parental rights is sought, the evidence must establish beyond a reasonable doubt that “continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

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South Dakota Law