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Oglala Sioux Tribe v. Fleming

United States Court of Appeals, Eighth Circuit

September 14, 2018

Oglala Sioux Tribe; Rosebud Sioux Tribe, as parens patriae, to protect the rights of their tribal members; Madonna Pappan; Lisa Young, individually and on behalf of all other persons similarly situated, Plaintiffs - Appellees,
v.
Lisa Fleming, in her official capacity, Defendant, Mark Vargo, in his official capacity, Defendant-Appellant, Honorable Craig Pfeifle; Lynne A. Valenti, in their official capacities, Defendants. Cherokee Nation of Oklahoma; ICWA Law Center; National Congress of American Indians; National Indian Child Welfare Association; Navajo Nation; Amici on Behalf of Appellee(s). Oglala Sioux Tribe; Rosebud Sioux Tribe, as parens patriae, to protect the rights of their tribal members; Madonna Pappan; Lisa Young, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellees,
v.
Lisa Fleming; Mark Vargo, in their official capacities, Defendants, Honorable Craig Pfeifle, in his official capacity, Defendant–Appellant, Lynne A. Valenti, in her official capacity, Defendant. Oglala Sioux Tribe; Rosebud Sioux Tribe, as parens patriae, to protect the rights of their tribal members; Madonna Pappan; Lisa Young, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellees,
v.
Lisa Fleming, in her official capacity, Defendant–Appellant, Mark Vargo; Honorable Craig Pfeifle, in their official capacities, Defendants, Lynne A. Valenti, in her official capacity, Defendant–Appellant.

          Submitted: February 13, 2018

          Appeals from United States District Court for the District of South Dakota - Rapid City

          Before SMITH, Chief Judge, MURPHY and COLLOTON, Circuit Judges.[*]

          COLLOTON, Circuit Judge.

         The Oglala Sioux Tribe, the Rosebud Sioux Tribe, and tribal members Madonna Pappan and Lisa Young brought this action against various South Dakota officials under 42 U.S.C. § 1983. They challenged procedures used in proceedings brought by the State to remove children temporarily from their homes in exigent circumstances. The plaintiffs alleged that the defendants were engaged in ongoing violations of the Due Process Clause of the Fourteenth Amendment and the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., because their policies and practices deprived Indian parents of a meaningful hearing after their children were taken into temporary state custody.

         The district court denied the defendants' motion to dismiss on jurisdictional grounds, and granted partial summary judgment for the plaintiffs on several of their statutory and constitutional claims. The court then entered a declaratory judgment and a permanent injunction. After declaring certain rights of Indian parents, custodians, children, and Tribes at hearings held within 48 hours of the State assuming temporary custody of a child, the court ordered the Department of Social Services (DSS) and the State's Attorney to implement certain procedures to protect these rights.

         The defendants appeal, and challenge both the district court's assertion of jurisdiction and its decision to grant declaratory and injunctive relief. We have jurisdiction to review the order granting the permanent injunction under 28 U.S.C. § 1292(a)(1). We also have jurisdiction to consider orders granting declaratory relief and partial summary judgment that are incorporated by, and inextricably bound up with, the injunction. FDIC v. Bell, 106 F.3d 258, 262-63 (8th Cir. 1997); Fogie v. THORN Americas, Inc., 95 F.3d 645, 648-49 (8th Cir. 1996).

         We ultimately conclude that the district court should have abstained from exercising jurisdiction under principles of federal-state comity articulated in Younger v. Harris, 401 U.S. 37 (1971), and later cases. We thus vacate the court's orders granting partial summary judgment and declaratory and injunctive relief, and remand with instructions to dismiss the claims that gave rise to the orders.[1]

         I.

         South Dakota law establishes a process for the removal of children from their homes in exigent circumstances. See S.D. Codified Laws § 26-7A-1 et seq. A law enforcement officer may take a child into temporary state custody without a court order if the officer reasonably believes that there is an "imminent danger to the child's life or safety and there is no time to apply for a court order." Id. § 26-7A-12(4). Alternatively, a court may order that the State take temporary custody of a child upon application by a state's attorney, DSS social worker, or law enforcement officer. The application must set forth "good cause to believe . . . [t]here exists an imminent danger to the child's life or safety and immediate removal of the child from the child's parents, guardian, or custodian appears to be necessary for the protection of the child." Id. § 26-7A-13(1)(b).

         The State may not hold a child in temporary custody for longer than 48 hours, excluding weekends and court holidays, unless it files a petition for temporary custody. Id. § 26-7A-14. The statute also requires a temporary custody hearing within 48 hours after the child is taken into custody to determine whether temporary custody should be continued. Id. § 26-7A-15. The parties describe this proceeding as the "48-hour hearing." South Dakota circuit courts have original jurisdiction over these proceedings. Id. § 26-7A-2.

         Under South Dakota law, at the 48-hour hearing, "the court shall consider the evidence of the need for continued temporary custody of the child in keeping with the best interests of the child." Id. § 26-7A-18. The 48-hour hearings are "conducted under rules prescribed by the court," and neither the rules of civil procedure nor the rules of evidence apply. Id. § 26-7A-56. "The rules may be designed by the court to inform the court fully of the exact status of the child and to ascertain the history, environment, and the past and present physical, mental, and moral condition of the child and the child's parents, guardian, and custodian." Id.

         At the conclusion of a 48-hour hearing, the court may order release of the child to his or her family or continued custody "under the terms and conditions for duration and placement that the court requires." Id. § 26-7A-19. If the court orders a child to remain in state custody after the 48-hour hearing, but has not determined that the child is abused or neglected, then South Dakota requires the court to "review the child's temporary custody placement at least once every sixty days." Id. § 26-7A-19(2).

         The plaintiffs in this case are two Indian Tribes-the Oglala Sioux Tribe and the Rosebud Sioux Tribe-and a class of individual plaintiffs represented by Madonna Pappan and Lisa Young. In their complaint, the plaintiffs alleged that the defendants violated the Due Process Clause of the Fourteenth Amendment and the ICWA by denying Indian parents a meaningful post-deprivation hearing after their children were taken into temporary state custody. The defendant officials are the Secretary of the South Dakota Department of Social Services and the head of Child Protective Services for Pennington County (together, "the DSS Defendants"), the ...


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