Oglala Sioux Tribe et al v. Van Hunnik et al, No. 5:2013cv05020 - Document 301 (D.S.D. 2016)
Court Description: ORDER granting 261 Motion for Partial Summary Judgment; denying 268 Motion to Strike. Signed by Chief Judge Jeffrey L. Viken on 12/15/16. (SB)
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Oglala Sioux Tribe et al v. Van Hunnik et al Doc. 301 UNITED STATE S DISTRICT COURT DI STRICT OF SOUTH DAKOTA WE STERN DIVISION OGLALA SIOUX TRIBE and ROSEBUD SIOUX TRIBE, as parens patriae, to protect the rights of their tribal members; MADONNA PAPPAN, and LISA YOUNG, individually and on behalf of all other persons similarly situated, CIV. 13-5020-JLV ORDER Plaintifs, vs. LISA FLEMING; MARK VARGO; HONORABLE CRAIG PFEIFLE; and LYNNE A.VALENTI, in their oicial capacities, Defendants. INTRODUCTION Plaintifs iled a motion or partial summary judgment, together with supporting documentation, against Defendant Mark Vargo. (Dockets 261, 263 & 265). Defendant Vargo iled a motion to strike plaintifs' motion. (Docket 268). Mr. Vargo also iled a responsive legal memorandum, with supporting documentation, in resistance to plaintifs' motion. (Dockets 269-271). For the reasons stated below, defendant's motion to strike is denied and plaintifs' motion or partial summay judgment is granted. ANALYSIS Plaintifs seek partial summary judgment against Defendant Vargo because § 1922 of the Indian Child Welare Act ("ICWA ")1 requires that "[t]he 125 U.S. § 1901 et seq. C. Dockets.Justia.com State authority, oicial, or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessay to prevent imminent physical damage or harm to the child . ..." 25 U. C.§1922. Plaintifs allege the Pennington County State's S. Attorney and his staf are applying a standard in 48-hour hearings2 and subsequent emergency proceedings3 where "continued custody of the child ... by the parents or Indian custodian is likely to result in serious emotional or physical harm to the child ...." also Dockets 263 ii! 2 & (Docket 262 at pp. 2-3) (emphasis added); see 3 and 270 i! 2 & 3. Plaintifs contend that in applying this broader deinition of harm, Mr.Vargo "permits DSS to seek continued custody of an Indian child based exclusively on evidence of emotional damage." Id. at p. 4 (emphasis in original). According to the undisputed evidence, "in approximately seveny-ive percent oflndian custody cases, continued custody is sought based exclusively on emotional damage." Id.(references to the record omitted). 2SDCL § 26-7 A-14 directs "no child may be held in temporary custody longer than orty-eight hours ...excluding Saturdays, Sundays, and court holidays, unless a ... petition has been iled ... and the court orders longer custody during a noticed hearing ...." These proceedings are commonly referred to as a "48-hour hearing." 3"Emergency proceeding means and includes any court action that involves an emergency removal or emergency placement of an Indian child." 25 CFR § 23. (December 12, 2016). "These proceedings are distinct rom other 2 ypes of 'child-custody proceedings' under [ICWA]." Executive Summary to the Department of the Interior's regulations implementing ICWA, 81 Fed. Reg. 38778-38876, 38793 (June 14, 2016) ("Executive Summary "). 2 Plaintifs allege the evidence discloses that Mr.Vargo and his staf refuse to apply the proper standard under§ 1922. Id.at p. 6. Plaintifs submit "Defendant Vargo's construction of § 1922 is ... inconsistent with the overarching purpose of ICWA because it lowers the bar, thereby resulting in more Indian children being removed rom their homes than Congress intended to allow. " Id. at p.12. Plaintifs assert "Defendant Vargo is circumventing this Court's ruling on § 1922 by interpreting and applying it in a manner contrary to its language, its legislative histoy, and with the remedial purpose of the Indian Child Welare Act. " Id. Mr.Vargo asks the court to strike plaintifs' motion or partial summary judgment because "Plaintifs have already sought-and were granted-summary judgment against [him] or all of the allegations they raised ...in the complaint." (Docket 269 at p.1). Mr.Vargo contends that if plaintifs want to seek summary judgment on the basis presently alleged, they "must irst ... amend their complaint to include the allegations upon which they now seek summary judgment." Id.at p.3. In the alternative, Mr. Vargo argues plaintifs' motion must be denied because the court has previously referenced "emotional or physical damage " in its earlier orders. Id. at pp.6-7 (references omitted). Mr.Vargo also argues the legislative histoy of§ 1922 must have intended to separate "physical damage " rom "harm." Id. at p. 7. He contends this would allow consideration of 3 "emotional harm " within the deinition of harm. Id.at p. 8; see also Docket 270 at p. 4 f 2. Plaintifs' counter-argument is that the irst motion or summary judgment "challenged Vargo's policy of ignoring§ 1922, whereas in the second motion, Plaintifs challenge Vargo's policy of misintepreting and misapplying§ 1922." (Docket 279 at p. 4) (emphasis in original). Plaintifs contend Mr. Vargo's argument "overlooks the act that ICWA contains two diferent standards or removal/retention of Indian children: one applicable to the§ 1922 initial hearing ("imminent physical damage or harm ") and the other applicable to§ 1912(e) and § () adjudicatory hearings to determine long-term oster care or adoption ("serious emotional or physical damage ")." Id. at p. 7. Plaintifs seek partial summay judgment against Mr.Vargo "to remove this inal obstacle to the implementation of§ 1922 in Defendants' 48-hour hearings. " (Docket 262 at p. 6). During an emergency proceeding involving the removal of an Indian child rom the custody of an Indian parent or custodian and the subsequent determination of whether the child should be returned to the custody of the parent or custodian without initiation of an abuse and neglect petition, "the emergency removal or placement " must "terminate[] immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child ...." 25 U.S.C.§ 1922 (" 1922 standard "). § 4 During the comment period or updating the ICWA regulations this past year, "[m]any commenters opposed the proposed deinition of 'imminent physical harm or damage' because they asserted ... [t)he proposed deinition is too narrow in omitting neglect and emotional or mental (psychological) harm and would preclude emergency measures to protect a child rom these types of harms ...." Executive Summary, 81 Fed. Reg. at 38793 (June 14, 2016). The Executive Summay declined to incorporate emotional harm within the parameters of§ 1922, stating "[t]he 'imminent physical damage or harm' standard applies only to emergency proceedings, which are not subject to the same procedural and substantive protections as other ypes of child-custody proceedings4. .. ." Id. The Executive Summay advised "Congress used the standard of 'imminent physical damage or harm' to guard against emergency removals where there is no imminent physical damage or harm." Id. at 38794. "ICWA requires that an emergency proceeding terminate immediately when the removal or placement is no longer necessary to prevent imminent physical damage or harm to the child." Id. at 38817 (emphasis added). "An emergency proceeding " is terminated by "(1) Initiation of a child-custody proceeding subject to the provisions of ICWA; (2) Transfer of the child to the jurisdiction of the 4By contrast, subsequent child-custody adjudication hearings are bound by the language of§ 1912, which states: "No oster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence ...that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C.§ 1912(e) (" 1912 standard "). § 5 appropriate Indian Tribe; or (3) Restoring the child to the parent or Indian custodian." 25 CFR § 23.l 13(c) (December 12, 2016). ICWA "treats emergency proceedings, at § 1922, diferently rom other child-custody proceedings ....The emergency proceedings should be as short as possible and may end with the initiation of a child-custody proceeding subject to the provisions of ICWA (e. , the notice required by§ 23. g. 111, time limits required by§ 23. 112)." Executive Summary, 81 Fed. Reg.at 38821. By using the § 1922 standard, "Congress established a high bar or emergency proceedings that occur without the full suite of protections in ICWA." Id. at 38793. The court must examine § 1922 to determine "whether the language at issue has a plain and unambiguous meaning ...." Solis v. Summit Contractors, Inc. 558 F. 815, 823 (8th Cir. 2009). The language of§ 1922 is , 3d clear. The phrase "imminent physical " modiies both "damage " and "harm." To interpret § 1922 otherwise would permit the reader to conclude that damage must be imminent and physical, while harm need not be either imminent or physical. This strained interpretation deies common sense. By contrast, when addressing the State's burden of proof in a subsequent child-custody proceeding, Congress speciically intended "serious emotional or S. § physical damage " as the criteria. See 25 U. C. 1912(e). The distinction between the§ 1922 standard and the § 1912 standard was intentional. The court's "analysis begins with the language of the statute.... And where the statutory language provides a clear answer, it ends there as well." 6 Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999). The court inds Congress intended§ 1922 to be limited solely to "imminent physical damage or harm " in determining whether to initiate or terminate emergency proceedings. ORDER Based on the above analysis, it is ORDERED that defendant Vargo's motion to strike (Docket 268) is denied. IT IS FURTHER ORDERED that plaintifs' motion or partial summay judgment (Docket 261) is granted. IT IS FURTHER ORDERED that 25 U. S.C.§ 1922 does not permit consideration of "emotional damage or harm " in § 1922 emergency proceedings under 25 CFR part 23. Dated December 15, 2016. BY THE COURT: o __ 7
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