PIERRE, S.D. (KELO) — Testimony should be taken from a child’s physician before a state circuit judge decides whether to transfer an abuse and neglect case to jursidiciton of the Oglala Sioux Tribe, the South Dakota Supreme Court has ruled,
In a decision publicly released Thursday, Supreme Court Justice Mark Salter said Circuit Judge Matthew Brown must hold an evidentiary hearing and hear from the pediatrician. The four other justices agreed the hearing should occur.
The circuit judge previously ruled Dr. David Whitney’s testimony would be irrelevant, after an objection by the tribe’s lawyer, Dana Hanna of Rapid City, and ordered that the case be transferred.
The child’s lawyer, Cassidy Stalley of Rapid City, appealed the circuit judge’s decisions.
The mother and the child are tribal members. The child was born August 31, 2016. Both mother and child had methamphetamine in their systems
The mother eventually faced permanent removal of the child after she allegedly drove drunk and fled the scene of an August 2017 crash.
The tribe’s objection in the abuse and neglect proceeding was that Dr. Whitney planned to testify about placement and bonding between the foster parents and child, who was less than two years old.
Justice Salter wrote that the federal Indian Child Welfare Act gives concurrent jurisdiction over abuse and neglect cases involving Indian children who don’t live on reservations or are wards of a tribal court.
The justice also noted that “this shared jurisdiction is presumptively tribal” and listed the federal exceptions including “good cause.”
Salter wrote: “Here, Dr. Whitney was child’s pediatrician and had been for most of her young life. His testimony concerning the impact of the transfer upon child may well have yielded relevant and admissible evidence.”
He continued, “Separate and apart from placement or bonding concerns, it is possible that at least some of Dr. Whitney’s opinions could have been relevant to broader best-interests considerations such as stability, health or the presence of extraordinary circumstances.”