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THE INDIAN CHILD WELFARE ACT OF 1978: 

PUBLIC LAW 95-608

Case Law

 

Summaries of ICWA Case Law

 

For a fuller list of ICWA Case law,

visit    

The Christian Alliance for Indian Child Welfare (CAICW)    http://www.caicw.org/icw.html 

 

 

 

 

 

 

CASE LAW LIST :

  1. U.S. SUPREME COURT - Mississippi Choctaw Indian Band v. Holyfield, et al. , April 3, 1989

Definition of "domicile" under the Indian Child Welfare Act / Parental Rights diminished

2. ALASKA - In the Matter of F.P., W.M. and A.M, December 18, 1992

Tribal Jurisdiction questioned

3. CALIFORNIA - JAMES R. AND COLETTE R. v. CINDY R. et al., January 19, 1996

The "Existing Indian Family" Doctrine, Constitutional Limitations upon the Scope of ICWA,

Equal Protection, and The Indian Commerce Clause and The Tenth Amendment.

4. NINTH CIRCUIT COURT - Native Village of Venetie Ira Council v. Alaska September 17, 1998

"Full Faith and Credit" given to adoption decrees issued by Tribal Courts

5. MONTANA - In the Matter of the Adoption of Riffle July 30, 1996

Child's "Constitutional Rights", "Best Interests", and "Good Cause".

6. MONTANA - In re Marriage of Skillen March 3, 1998

"Indian jurisdiction" law in relationship to UCCJA and PKPA

7. MONTANA - In Matter of A.P., Youth in Need of Care July 16, 1998

Successful "Good Cause"

8. MONTANA - In the Matter of the Adoption of H.M.O. July 16, 1998

"Qualified Expert Witnesses"

9. MONTANA - In the Matter of K. H. & K. L. E., Youths in Need of Care June 3, 1999 (briefs only)
  1. MONTANA - In re T.A.G., Youth in Need of Care June 15, 1999

Successful "Good Cause"

  1. MONTANA - M.P.M. and A.R.M., Youths in Need of Care. April 20, 1999

"Qualified Expert Witnesses"

  1. MONTANA - In the Matter of C.H., Youth in Need of Care March 16, 2000

Unsuccessful "Good Cause"

  1. MINNESOTA - In the Matter of the Welfare of: S.N.R. September 1, 2000

Determination that a Child is a Tribal Member

  1. OKLAHOMA - In the Matter of Child, B.R.W. September 19, 2003

The "Existing Indian Family" Doctrine

  1. ALASKA - In the Matter of the Adoption of Keith M.W. October 31, 2003

Voluntary Relinquishment of Parental Rights

  1. CONNECTICUT - In the Interest of MAKAILA A., a person under the age of eighteen years. December 19, 2003

"Termination of Parental Rights"

  1. MINNESOTA - Roy E. GERBER v. Phyllis EASTMAN January 20, 2004

"Child Custody Proceeding," defined

 

- Article: Are Our Children Chattel for Tribal Government?

__________________________________________________________________________

U.S. Supreme Court

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Docket No. 87-980 Argued January 11, 1989 Decided April 3, 1989

CITATION: 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)

Mississippi Choctaw Indian Band v. Holyfield, et al.

Definition of "domicile" under the Indian Child Welfare Act / Parental Rights

"Congress enacted the ICWA because of concerns going beyond the wishes of individual parents."

SYNOPSIS: The U. S. Supreme Court found that the definition of "domicile" under the Indian Child Welfare Act should be defined by federal common law, versus state law, upholding ICWA's purpose of removing jurisdiction of child custody proceedings from state courts to tribal courts. The case establishes that a legitimate child takes the domicile of its parents, and an illegitimate child takes the domicile of its mother. At issue in this case was whether provisions of the Indian Child Welfare Act establishing tribal jurisdiction over child custody proceedings are limited to Indian children domiciled on the tribe's reservation. Justice Brennan filed the majority opinion, joined by Justices White, Marshall, Blackmun,O'Connor and Scalia. Justices Stevens, Rehnquist, and Kennedy filed a dissenting opinion.

HISTORY: On the basis of extensive evidence indicating that large numbers of Indian children were being separated from their families and tribes and were being placed in non-Indian homes through state adoption, foster care, and parental rights termination proceedings, and that this practice caused serious problems for the children, their parents, and their tribes, Congress enacted the Indian Child Welfare Act of 1978 (ICWA) which, inter alia, gives tribal courts exclusive jurisdiction over custody proceedings involving an Indian child "who resides or is domiciled within" a tribe's reservation. This case involves the status of twin illegitimate babies, whose parents were enrolled members of appellant Tribe and residents and domiciliaries of its reservation in Neshoba County, Mississippi. After the twins' births in Harrison County, some 200 miles from the reservation, and their parents' execution of consent-to-adoption forms, they were adopted in that county's Chancery Court by the appellees Holyfield, who were non-Indian. That court subsequently overruled appellant's motion to vacate the adoption decree, which was based on the assertion that under the ICWA exclusive jurisdiction was vested in appellant's tribal court. The Supreme Court of Mississippi affirmed, holding, among other things, that the twins were not "domiciled" on the reservation under state law, in light of the Chancery Court's findings (1) that they had never been physically present there, and (2) that they were "voluntarily surrendered" by their parents, who went to some efforts to see that they were born outside the reservation and promptly arranged for their adoption. Therefore, the court said, the twins' domicile was in Harrison County and the Chancery Court properly exercised jurisdiction over the adoption proceedings.

HELD: The twins were "domiciled"on the Tribe's reservation within the meaning of the ICWA's exclusive tribal jurisdiction provision, and the Chancery Court was, accordingly, without jurisdiction to enter the adoption decree. Pp. 42-54.

      1. Although the ICWA does not define "domicile," Congress clearly intended a uniform federal law of domicile for the ICWA and did not consider the definition of the word to be a matter of state law. The ICWA's purpose was, in part, to make clear that in certain situations the state courts did not have jurisdiction over child custody proceedings. In fact, the statutory congressional findings demonstrate that Congress perceived the States and their courts as partly responsible for the child separation problem it intended to correct. Thus, it is most improbable that Congress would have intended to make the scope of the statute's key jurisdictional provision subject to definition by state courts as a matter of state law. Moreover, Congress could hardly have intended the lack of nationwide uniformity that would result from state-law definitions of "domicile," whereby different rules could apply from time to time to the same Indian child, simply as a result of his or her being moved across state lines. Pp. 43-47.
      2. The generally accepted meaning of the term "domicile" applies under the ICWA to the extent that it is not inconsistent with the objectives of the statute. In the absence of a statutory definition, it is generally assumed that the legislative purpose is expressed by the ordinary meaning of the words used, in light of the statute's object and policy. Well-settled common-law principles provide that the domicile of minors, who generally are legally incapable of forming the requisite intent to establish a domicile, is determined by that of their parents, which has traditionally meant the domicile of the mother in the case of illegitimate children. Thus, since the domicile of the twins' mother (as well as their father) has been, at all relevant times, on appellant's reservation, the twins were also domiciled there even though they have never been there. The result is not altered by the fact that they were "voluntarily surrendered" for adoption. Congress enacted the ICWA because of concerns going beyond the wishes of individual parents, finding that the removal of Indian children from their cultural setting seriously impacts on long-term tribal survival and has a damaging social and psychological impact on many individual Indian children. These concerns demonstrate that Congress could not have intended to enact a rule of domicile that would permit individual Indian parents to defeat the ICWA's jurisdictional scheme simply by giving birth and placing the child for adoption off the reservation. Pp. 47-53. 511 So. 2d 918, reversed and remanded.

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THE SUPREME COURT OF THE STATE OF ALASKA

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843 P 2d 1214

File No. S-4742

No. 3906 - December 18, 1992

In the Matter of F.P., W.M. and A.M, Minor Children Under the Age of Eighteen (18) Years.

Tribal Jurisdiction

In March 1991 the Alaska Department of Health and Social Services took emergency custody of F.P., W.M. and A.M. The Department filed a petition for temporary custody. The Native Village of Circle intervened and moved to dismiss the superior court proceeding, claiming exclusive jurisdiction over the custody matter. The superior court denied the motion to dismiss. We affirm.

Circle is without jurisdiction in this child custody dispute. This case is controlled by Native Village of Nenana v. Department of Health & Social Services, 722 P.2d 219 (Alaska 1986), cert. denied, 479 U.S. 1008 (1986), and In re K.E., 744 P.2d 1173 (Alaska 1987). Circle asks that we review our holdings in these cases in light of recent opinions of the United States Court of Appeals for the Ninth Circuit, especially Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548 (9th Cir. 1991).

The decision in Native Village of Venetie fails to persuade us that our prior cases should be overruled.

1. In concluding that the villages of Venetie and Fort Yukon had concurrent jurisdiction in child custody matters, the Venetie court held that these villages could be considered "sovereign," and therefore entitled to "the same rights and responsibilities as [] sovereign bands of native Americans in the continental United States," if they were "modern day successors to sovereign historical bands of natives." Id. at 559.

This opinion is contrary to Native Village of Stevens v. Alaska Management & Planning, 757 P.2d 32 (Alaska 1988), where we concluded that "the history of the relationship between the federal government and Alaska Natives . . . indicates that Congress intended that most Alaska Native groups not be treated as sovereigns." Id. at 34. Under 25 U.S.C. 1918(a) (1988), any Alaskan Native group seeking to "reassume" jurisdiction over child custody matters must first petition the Secretary of the Interior for approval.

2. The Ninth Circuit recognized this in Venetie. Venetie, 944 F.2d at 555. Nevertheless, it concluded that neither the Indian Child Welfare Act (25 U.S.C. 1901-63 (1988)) nor Public Law 280 prevents Alaskan Native groups from exercising concurrent jurisdiction over child custody matters. Id. at 562. We reached an opposite conclusion in Native Village of Nenana: Our reading of 25 U.S.C. 1918(a) indicates that Congress intended that Public Law 280 give certain states, including Alaska, exclusive jurisdiction over matters involving the custody of Indian children, and that those states exercise such jurisdiction until a particular tribe petitions to reassume jurisdiction over such matters, and the Secretary of the Interior approves [the] tribe's petition. Native Village of Nenana, 722 P.2d at 221.

Our analysis of the issue need not be repeated here. See id. at 221-22; see also In re K.E., 744 P.2d at 1174. We remain convinced that our interpretation of 1918(a) is correct. Nothing in Native Village of Venetie persuades us to change our opinion. Since Circle has not successfully petitioned the Secretary of the Interior to reassume jurisdiction pursuant to 25 U.S.C. 1918(a), it has no jurisdiction to decide child custody matters. The superior court therefore correctly denied Circle's motion to dismiss.

3. AFFIRMED.

RABINOWITZ, Chief Justice, dissenting.

I dissent from this court's affirmance of the superior court's denial of Native Village of Circle's motion to dismiss the state's motion for temporary custody. The rationale for the court's opinion is that the superior court's ruling should be affirmed because Circle lacks jurisdiction to decide child custody matters since it has not as yet successfully petitioned the Secretary of Interior to reassume jurisdiction over child custody matters pursuant to 25 U.S.C. 1918(a). Unlike the majority I am persuaded by the Ninth Circuit's analysis in Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548 (9th Cir. 1991) that our decisions in Native Village of Nenana v. Department of Health & Social Services, 722 P.2d 219 (Alaska 1986), cert. denied, 479 U.S. 1008 (1986) and In re K.E., 744 P.2d 1173 (Alaska 1987) were incorrectly decided and should be overruled. It follows that I cannot join the majority in its reliance upon Native Village of Stevens v. Alaska Management & Planning, 757 P.2d 32 (Alaska 1988) in support of its rejection of the Ninth Circuit's Venetie opinion. In brief, I adhere to the views I expressed in my dissent in Native Village of Stevens. With the passage of the Indian Child Welfare Act (ICWA), Congress implemented the policy of promoting tribal integrity by establishing various procedural and substantive protections to govern Indian child custody matters.4 "Significantly, the declaration of the Act's legislative purpose includes both the protection of `the best interests of Indian children' and the promotion of `the stability and security of Indian tribes and families.'"5 To accomplish the federal policy of promoting tribal integrity by stopping the "wholesale separation of Indian children from their families,"6 ICWA mandates specific jurisdictional rules7 and further mandates that federal, state, and tribal governments: [G]ive full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity. 25 U.S.C. 1911(d) (1988). Alaska Native villages are recognized by Congress as "Indian tribes" for purposes of the ICWA. See 25 U.S.C. 1903(8).8 This court has previously acknowledged the role of Alaskan tribal courts in Indian child custody matters. See In re J.M., 718 P.2d 150 (Alaska 1986) (Village council operated under the code or custom of an "Indian tribe" and, under the ICWA, was vested with exclusive jurisdiction as a "tribal court" over matter of custody of Indian child and, in absence of a waiver, was not precluded from claiming same in proceedings in state court to place child in foster care and terminate natural mother's parental rights.).

Tribes have jurisdiction over their members by virtue of their inherent sovereignty. See Montana v. United States, 450 U.S. 544, 564 (1981) ("[T]he Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members."); see also Duro v. Reina, 495 U.S. 676, 685-86 (1990) ("the retained sovereignty of the tribes is that needed to control their own internal relations, and to preserve their own unique customs and social order [and] . . . to prescribe and enforce rules of conduct for [their] own members."). A tribe's sovereign authority, moreover, is presumed until Congress affirmatively acts to take such authority away. Native Village of Venetie, 944 F.2d at 556; see also United States v. Wheeler, 435 U.S. 313, 323 (1978) ("[U]ntil Congress acts, the tribes retain their existing sovereign powers."). Given these principles, in my view it is inconsistent with the doctrine of inherent tribal sovereignty to conclude that 19189 of the ICWA and Public Law 280, taken together, divest tribes of even concurrent jurisdiction over child custody matters. Such a conclusion can only be reached if Public Law 280 is interpreted as a divestiture statute.

It is on this point that I find Judge O'Scannlain's analysis in Native Village of Venetie persuasive. There Judge O'Scannlain wrote: The Supreme Court has also adopted the view that Public Law 280 is not a divestiture statute. See Cabazon Band of Mission Indians, 480 U.S. at 207-12, 107 S. Ct. at 1087-90; Bryan, 426 U.S. at 383-90, 96 S. Ct. at 2108-12; see also Walker v. Rushing, 898 F.2d 672, 675 (8th Cir. 1990) ("Public Law 280 did not itself divest Indian tribes of their sovereign power to punish their own members for violations of tribal law. Nothing in the wording of Public Law 280 or its legislative history precludes concurrent jurisdiction."). In Bryan, the Court observed that "nothing in [Public Law 280's] legislative history remotely suggests that Congress meant the Act's extension of civil jurisdiction to the States should result in the undermining or destruction of such tribal governments as did exist and a conversion of the affected tribes into little more than `private voluntary organizations.'" 426 U.S. at 388, 96 S. Ct. at 2111 (quoting United States v. Mazurie, 419 U.S. 544, 557, 95 S. Ct. 710, 717, 42 L. Ed. 2d 706 (1975)). The Court has rejected all interpretations of Public Law 280 which would result in an undermining or destruction of tribal governments. . . . . Finally, we note that Congress was aware, while drafting the Indian Child Welfare Act, that the U.S. Department of Justice viewed Public Law 280 as providing for concurrent jurisdiction among state and tribal courts. Then - Assistant Attorney General for Legislative Affairs Patricia M. Wald wrote to Interior and Insular Affairs Committee Chairman Morris K. Udall: "As you may be aware, the courts have consistently recognized that tribal governments have exclusive jurisdiction over the domestic relationships of tribal members located on reservations, unless a State has assumed concurrent jurisdiction pursuant to Federal legislation such as Public Law 83-280." Letter from Assistant Attorney General Patricia M. Wald to Hon. Morris K. Udall (Feb. 8, 1978), included in H.R. Rep. No. 1386, 95th Cong. 2d Sess. 35, reprinted in 1978 U.S. Code Cong. & Admin. News 7530, 7558 (emphasis added).

In spite of the foregoing, Alaska suggests that section 1918 of the Indian Child Welfare Act would be rendered meaningless by any non-divestiture interpretation of Public Law 280. However, the two statutes can be harmonized without construing Public Law 280 as a divestiture statute. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104 S.Ct. 2862, 2880, 81 L. Ed. 2d 815 (1984) (statutes capable of being harmonized should be so construed). The relevant portions of the Indian Child Welfare Act enable the Secretary of the Interior to grant to a tribe, upon receipt of a proper petition, exclusive jurisdiction (over all or a portion of the appropriate "Indian country") or referral jurisdiction of child-custody proceedings. See 25 U.S.C. 1918(b)(2) (1988). Each of these types of jurisdiction is broader than any tribal jurisdiction which is concurrent with the states. Exclusive jurisdiction, of course, is clearly broader than concurrent jurisdiction. Likewise, referral jurisdiction is broader in scope than concurrent jurisdiction, in that referral jurisdiction is concurrent but presumptively tribal jurisdiction. See id. 1911(b). Thus, there is something for a tribe to "reassume" under section 1918 -- namely, exclusive or referral jurisdiction -- even if Public Law 280 is read as not divesting the tribes of concurrent jurisdiction.

In sum, giving the benefit of doubt to Alaska, we conclude that Public Law 280 and the Indian Child Welfare Act are, at best, ambiguous as to whether states have exclusive or concurrent jurisdiction over child custody determinations where the tribe has not petitioned for exclusive or referral jurisdiction. Of course, ambiguities are to be resolved to the benefit of Indians. Montana v. Blackfeet Tribe, 471 U.S. 759, 766, 105 S. Ct. 2399, 2403, 85 L. Ed. 2d 753 (1985). Accordingly, resolving the jurisdictional ambiguities in favor of the villages, we hold that neither the Indian Child Welfare Act nor Public Law 280 prevents them from exercising concurrent jurisdiction. If the native villages of Venetie and Fort Yukon are sovereign entities which may exercise dominion over their members' domestic relations, Alaska must give full faith and credit to any child-custody determinations made by the villages' governing bodies in accordance with the full faith and credit clause of the Indian Child Welfare Act. Id. at 560-62.10 _______________________________

      1. As the court of appeals observed in Harrison v. State, 791 P.2d 359 (Alaska App. 1990): Where a federal question is involved, the courts of Alaska are not bound by the decisions of a federal court other than the United States Supreme Court. The converse is also true; federal courts in Alaska are not bound by decisions of Alaska state courts on questions of federal law. Id., at 363 n.7 (citations omitted).
      2. Section 1918(a) provides: Any Indian tribe which became subject to State jurisdiction pursuant to the provisions of the Act of August 15, 1953 (67 Stat. 588), as amended by Title IV of the Act of April 11, 1968 (82 Stat. 73, 78), or pursuant to any other Federal law, may reassume jurisdiction over child custody proceedings. Before any Indian tribe may reassume jurisdiction over Indian child custody proceedings, such tribe shall present to the Secretary for approval a petition to reassume such jurisdiction which includes a suitable plan to exercise such jurisdiction. The Act of August 15, 1953 is commonly referred to as "Public Law 280." Alaska has been a "Public Law 280" state since 1958. 72 Stat. 545 (1958).
      3. We have reviewed Circle's remaining arguments and have concluded that they lack merit.
      4. The policy of ICWA was based on the following congressional findings: Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds --
        1. that Clause 3, section 8, article I of the United States Constitution provides that "The Congress shall have Power . . . To regulate Commerce . . . with Indian tribes" and, through this and other constitutional authority, Congress has plenary power over Indian affairs;
        2. that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;
        3. that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
        4. that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that an alarmingly high percentage of such children are placed in non- Indian foster and adoptive homes and institutions; and
        5. that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. 25 U.S.C. 1901 (1988).
      5. Barbara Ann Atwood, Fighting Over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 UCLA L. REV. 1051, 1058 (1989); citing to 1902. Section 1902 states: The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.
      6. H.R. REP. NO. 1386, 95th Cong., 2d Sess. 9, reprinted in 1978 U.S. CONG. & ADMIN. NEWS 7530, 7531.
      7. 25 U.S.C. 1911 (a) provides: An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child. Section 1911(b) provides: In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent of the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.
      8. Section 1903(8) states: "Indian tribe" means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of Title 43.
      9. Section 1918 limits the jurisdiction granted in sections 1911(a) & (b). Section 1918(a) provides: Any Indian tribe which became subject to State jurisdiction pursuant to the provisions of the Act of August 15, 1953 (67 Stat. 588), as amended by Title IV of the Act of April 11, 1968 (82 Stat. 73, 78), or pursuant to any other Federal law, may reassume jurisdiction over child custody proceedings. Before any Indian tribe may reassume jurisdiction over Indian child custody proceedings, such tribe shall present to the Secretary for approval a petition to reassume such jurisdiction which includes a suitable plan to exercise such jurisdiction.
      10. In regard to the majority's reliance on Native Village of Stevens v. Alaska Management & Planning, 757 P.2d 32 (Alaska 1988), I reaffirm the views expressed in my dissenting opinion in that case and take this occasion to explicitly reiterate my conclusion that: As stated earlier I agree with the court that there has never been any express federal recognition of Alaska Native villages as tribes for purposes of sovereign immunity. However, it is equally clear that Congress has never expressly denied sovereign immunity to these villages. The unfortunate but inescapable fact is that Congress has steadfastly avoided defining the extent and limits of Native sovereignty in Alaska. Illustrative of this fact are the recent "1991" amendments to ANCSA, in which Congress declared, "[N]o provision of this Act shall . . . confer on, or deny to, any Native organization any degree of sovereign governmental authority over lands . . . or persons in Alaska. . . ." Alaska Native Claims Settlement Act Amendments of 1987, Pub. L. No. 100-241, 2(8)(B), 101 Stat. 1788, 1789 (1988). See also id. 17(a), 101 Stat. 1814. The Senate Report on the bill stated: . . . . This is an issue which should be left to the courts in interpreting applicable law and that these amendments should play no substantive or procedural role in such court decisions. S. Rep. No. 201, 100th Cong. 1st Sess. 23 (1987), U.S. Code Cong. & Admin. News 1988, pp. 3269, 3274. Thus, it appears that Congress has chosen to abdicate to the courts on this issue. In the absence of any express federal recognition or waiver of sovereign immunity, this court is bound to follow the common law principles of tribal sovereign immunity announced by the Supreme Court. In my view the court's opinion fails to do this. Id. at 49-50.

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THE SUPERIOR COURT OF LOS ANGELES COUNTY

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LLR No. 9601041.CA
Cite as: LLR 1996.CA.41 - The Pomo Twins

01/19/96 JAMES R. AND COLETTE R. v. CINDY R. et al.,

- The "Existing Indian Family" Doctrine

- Constitutional Limitations upon the Scope of ICWA

- Equal Protection.

- The Indian Commerce Clause and The Tenth Amendment.

[27] California recognizes the principle that children are not merely chattels belonging to their parents, but rather have fundamental interests of their own. (In re Jasmon O. (1994) 8 Cal.4th 398, 419.) Such fundamental interests are of constitutional dimension. This principle is central to our resolution of the multiple and complex issues presented by this case.

[28] We reverse an order of the trial court made pursuant to sections 1913 and 1914 of the Indian Child Welfare Act of 1978 (25 U.S.C.A. 1901 et seq.; hereafter "ICWA" or "the Act"). The court's order invalidated a voluntary relinquishment of parental rights respecting Bridget and Lucy R., twin two-year-old girls, and ordered the twins removed from their adoptive family, with whom they have lived since birth, and returned to the extended family of the biological father. The adoptive parents (hereafter the "R's" or "adoptive parents") appealed, *fn1 joined by the licensed adoption agency through which the twins were placed. *fn2

[29] The twins are of American Indian descent, and the within dispute over their prospective adoption and custody raises issues concerning the scope of ICWA. Specifically, it raises the question of whether the Act should be limited in its application, as some courts have limited it, to children who not only are of Indian descent, but also belong to an "existing Indian family." (See, e.g., In re Adoption of Crews (1992) 118 Wash.2d 561 [825 P.2d 305]; Matter of Adoption of Baby Boy L. (1982) 231 Kan. 199 [643 P.2d 168].) We conclude that question must be answered in the affirmative.

[30] ICWA was enacted by Congress to protect the best interests of Indian children and promote the stability of Indian tribes and families. (25 U.S.C.A. Section(s) 1902; Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32-37 [104 L.Ed. 2d 29, 109 S.Ct. 1597];

[31] Here, the twins' biological parents, Richard A. ("Richard") and Cindy R. ("Cindy"), initially relinquished the twins to appellant Vista Del Mar Child and Family Services ("Vista Del Mar") pursuant to section 8700 of California's Family Code for adoption by the R's, a non-Indian couple. However, Richard and Cindy later purported to withdraw their consent. With the assistance of the Dry Creek Rancheria of Pomo Indians, the federally recognized Indian tribe from which Richard is descended (hereafter, the "Tribe"), they initiated proceedings under ICWA to invalidate their relinquishments of parental rights. It is undisputed that the relinquishments were not executed in the manner required by ICWA. It is also undisputed that Richard and the twins are now recognized by the Tribe as tribal members. However, the record raises substantial doubt as to whether Richard, who, at all relevant times, resided several hundred miles from the tribal reservation, ever participated in tribal life or maintained any significant social, cultural or political relationship with the Tribe.

[32] Although urged by Vista Del Mar and the R's to apply the "existing Indian family doctrine" in this case, and uphold the relinquishments of parental rights unless the biological parents established that they were such a family, the trial court declined to apply that doctrine or hold any hearing with respect thereto. The court simply declared the relinquishments invalid as violative of ICWA and ordered the twins placed in the custody of their paternal grandparents, who were appointed temporary guardians. The trial court also dismissed a petition by the adoptive parents to terminate the biological parent's parental rights on the ground of abandonment. (Fam. Code, Section(s) 7822.) The court found ICWA precluded it from proceeding on that petition.

[33] As we explain, recognition of the existing Indian family doctrine is necessary in a case such as this in order to preserve ICWA's constitutionality. We hold that under the Fifth, Tenth and Fourteenth Amendments to the United States Constitution, ICWA does not and cannot apply to invalidate a voluntary termination of parental rights respecting an Indian child who is not domiciled on a reservation, unless the child's biological parent, or parents, are not only of American Indian descent, but also maintain a significant social, cultural or political relationship with their tribe. Because the factual issues raised by such a rule have not been resolved, we reverse the trial court's order and remand the case for a determination of whether the twins' biological parents had such a relationship at the time that they voluntarily acted to relinquish their parental rights under California law. In the event that the trial court, after consideration of all the evidence, determines that such a relationship did not exist, then those relinquishments will be valid and binding and ICWA will not bar any pending adoption proceedings. On the other hand, if the trial court finds that the biological parents did have a significant social, cultural or political relationship with the Tribe, and therefore the provisions of ICWA can properly be applied, then a further guardianship hearing will be required to resolve the question of whether the twins should be removed from the custody of the R's.

The "Existing Indian Family" Doctrine

[58] As noted above, ICWA applies to any child who is either: (1) a member of an Indian tribe, or (2) eligible to be a member, and the biological child of a member of a tribe. (Section(s) 1903, subd. (4).) However, some courts have declined to apply the Act where a child is not being removed from an existing Indian family, because, in such circumstances, ICWA's underlying policies of preserving Indian culture and promoting the stability and security of Indian tribes and families are not furthered. (In re Adoption of Crews, supra, 825 P.2d 305; Matter of Adoption of Baby Boy L., supra, 643 P.2d 168.)

[59] The earliest case to articulate what later became known as the existing Indian family doctrine was Matter of Adoption of Baby Boy L., supra, 643 P.2d 168. In that case, the Kansas Supreme Court observed that the purpose of ICWA was to maintain family and tribal relationships existing in Indian homes and to set standards for removal of Indian children from an existing Indian environment. (643 P.2d at p. 175.) The court found that the child whose custody was at issue in that case had been relinquished by his non-Indian mother at birth and had never been in the custody of his Indian father. The child thus had never been part of an Indian family relationship. Preservation of an Indian family was therefore not involved in the case; consequently, ICWA did not apply. (643 P.2d at p. 175; see also Matter of Adoption of T.R.M. (Ind., 1988) 525 N.E.2d 298, 303; Claymore v. Serr (S.D., 1987) 405 N.W.2d 650, 654; In the Interest of S.A.M. (Mo., 1986) 703 S.W.2d 603, 609; Adoption of Baby Boy D. (Ok., 1985) 742 P.2d 1059, 1064, cert. den. by Harjo v. Duello (1988) 484 U.S. 1072 [98 L.Ed.2d 1005, 108 S.Ct. 1042].)

[60] While the above cases found ICWA inapplicable because the Indian child himself (or herself) had never lived in an Indian environment, other cases have focused upon the question of whether the child's natural family was part of an Indian tribe or community or maintained a significant relationship with one. In Matter of Adoption of Crews, supra, 825 P.2d 305, a case involving facts very similar to those before us, the Supreme Court of Washington found ICWA inapplicable to an adoption proceeding where the biological parents had no substantial ties to a specific tribe, and neither the parents nor their families had resided or planned to reside within a tribal reservation, although the birth mother was formally enrolled as a tribal member. In such a situation, the court found the application of ICWA would not further the Act's policies and purposes and would consequently not be proper. (825 P.2d at pp. 308-310; see also, Hampton v. J.A.L. (La.App., 2 Cir., 1995) 658 So.2d 331, 336, aff'd. by Supreme Court of Louisiana at 662 So.2d 478.)

[61] In California, at least two courts have recognized the existing family doctrine. In In re Wanomi P. (1989) 216 Cal.App.3d 156, the court found ICWA inapplicable by its express terms, because the tribe to which the child's mother belonged was a Canadian tribe, not a federally recognized tribe, as required by section 1903, subdivision (8) of ICWA. (216 Cal.App.3d at p. 166.) However, the court also observed, in dictum, that regulating the unwarranted removal of children from Indian families by nontribal agencies was among the objectives of ICWA, and no evidence suggested the existence of an Indian family from which the minor was being removed. (Id. at p. 168.) Thus, the court noted that there would be no occasion for an application of ICWA. (Ibid.) In In re Baby Girl A. (1991) 230 Cal.App.3d 1611, the majority found the baby's tribe had a right to intervene in adoption proceedings. However, the right of intervention existed under state law, independently of ICWA. (230 Cal.App.3d at pp. 1618-1619.) The court found that, upon remand of the action, the preferences for the placement of Indian children in Indian families or settings, which are provided in section 1915 of ICWA, need not be followed if the trial court found the child had no actual Indian family ties. (230 Cal.App.3d at pp. 1620-1621.)

[62] Two other California courts, however, have refused to apply the existing Indian family doctrine, or at least that version of the doctrine which holds that ICWA applies only if the child himself (or herself) has lived in an Indian family or community. In Adoption of Lindsay C., supra, 229 Cal.App.3d 404, the court characterized the doctrine as follows: "Generally speaking, [the doctrine] hold[s] the Act inapplicable in adoption proceedings involving an illegitimate Indian child who has never been a member of an Indian home or Indian culture, and who is being given up by his or her non-Indian mother." (229 Cal.App.3d at p. 410.) The Lindsay C. court rejected the doctrine as so characterized. (Id. at pp. 415-416.) The trial court had found the tribe of the child's unwed father had no right to notice of a pending step-parent adoption affecting the child, because he was the illegitimate child of a non-Indian mother, had always resided with the non-Indian mother, and had never been in the care or custody of the natural father, nor had any connection with Indian culture. Thus, without ever considering whether the natural father had significant ties with an Indian community, which he might one day share with the child if their family ties were not severed, the trial court concluded that no issue of the preservation of an Indian family was involved, as the child had never been a part of an Indian family. (Id. at p. 415.) The Court of Appeal rejected this reasoning and reversed. (Id. at pp. 415-416.)

[63] Likewise in In re Junious M. (1983) 144 Cal.App.3d 786, in a proceeding under (former) Civil Code section 232, the child's mother informed the court on the third day of trial that she was of Indian descent. (144 Cal.App.3d at pp. 788-789.) The court found the mother's tribe had a right to notice of the proceedings and a right to intervene, even though the minor had never lived in an Indian environment. "The language of the Act contains no [existing Indian family] exception to its applicability, and we do not deem it appropriate to create one judicially." (Id at p. 796, citing A.B.M. v. M.H. (Alaska 1982) [64] 651 P.2d 1170, 1173.)" *fn10

[65] We agree that a rule which would preclude the application of ICWA to any Indian child who has not himself (or herself) lived in an Indian family does not comport with either the language or purpose of the Act. Moreover, the United States Supreme Court has implicitly rejected any such limitation on ICWA. In Mississippi Band of Choctaw Indians v. Holyfield, supra, 490 U.S. 30, the only case in which the federal high court has construed ICWA, application of the Act's tribal jurisdiction provisions (25 U.S.C.A. Section(s) 1911, subd. (a)) was challenged by the adoptive parents of illegitimate twin babies whose parents were enrolled members of an Indian tribe and were residents of the tribal reservation. (490 U.S. at pp. 37-38.) The babies were born off of the reservation and immediately relinquished to a non-Indian family, who adopted them in the state Chancery court. The birth mother returned home to the reservation after giving birth. On a subsequent motion by the tribe to vacate the adoption on the ground that the tribal court had exclusive jurisdiction over matters affecting the children's custody, the state court found the children had never resided, or even been physically present, on the reservation, and were thus not domiciled there. Consequently, the court found ICWA did not apply. (Ibid.) The Supreme Court reversed (Id. at p. 41), finding that (1) a general federal rule of domicile must apply for purposes of determining jurisdiction under ICWA (Id. at pp. 43-45); (2) under such rule, the children's domicile at birth followed that of their natural mother, and she was domiciled on the reservation (Id. at pp. 47-49); (3) therefore, the tribe had exclusive jurisdiction over custody proceedings affecting the children under section 1911, subdivision (a). (Id. at p. 53.)

[66] Holyfield establishes, by clear implication, that an application of ICWA will not be defeated by the mere fact that an Indian child has not himself (or herself) been part of an Indian family or community. However, it does not follow from Holyfield that ICWA should apply when neither the child nor either natural parent has ever resided or been domiciled on a reservation or maintained any significant social, cultural or political relationship with an Indian tribe. *fn11 To the contrary, in our view, there are significant constitutional impediments to applying ICWA, rather than state law, in proceedings affecting the family relationships of persons who are not residents or domiciliaries of an Indian reservation, are not socially or culturally connected with an Indian community, and, in all respects except genetic heritage, are indistinguishable from other residents of the state. These impediments arise from the due process and equal protection guarantees of the Fifth and Fourteenth Amendments and from the Tenth Amendment's reservation to the states of all powers not delegated to the federal government. We must, of course, construe the statute to uphold its constitutionality. (Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council (1983) 485 U.S. 568, 575 [99 L.Ed.2d 645, 108 S.Ct. 1392]; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826.) [67] 3.

(See Constitutional arguments at 14th Amendment page - CAICW)

CONCLUSION

[123] In this case we have concluded that ICWA cannot be constitutionally applied in the absence of evidence demonstrating that the biological parents had a significant social, cultural or political relationship with the Tribe. On the record before us, we find little or no support for the existence of such relationship. Indeed, the conduct of the biological parents in this matter with respect to the events and circumstances leading up to their relinquishment of the twins strongly suggests that no such relationship existed. However, we cannot conclude, as a matter of law, that the biological parents or the Tribe, upon remand, would not be able to produce additional evidence. Indeed, as a result of the trial court's ruling, none of the parties had any opportunity to present evidence on this critical issue. Therefore, a hearing in the trial court will be required to determine if there is any factual support to establish that the twins were a part of an existing Indian family so as to justify the application of ICWA. On this question, the burden of proof will be on the biological parents and the Tribe. If the trial court concludes that they have not carried their burden, then judgment shall be entered in favor of the R's and they will be free to proceed with the adoption proceedings now pending in Ohio. If the trial court finds otherwise, then it will be necessary to conduct a further hearing on the question of whether there should be a change of custody. The pending guardianship petition filed by the R's would be a proper vehicle to resolve that question. *fn26 With respect to this issue, the R's will have the burden of proof. [124]

DISPOSITION

[125] The order to show cause is discharged. The petition for writ of mandate is granted. The order vacating the termination of the parental rights of Richard A. and Lucy R. over the minors Lucy and Bridget R. is reversed. The matter is remanded, and the trial court is [126] ordered to conduct further proceedings consistent with the views expressed in this opinion. Costs on appeal are awarded to the R's and Vista Del Mar.

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U.S. 9th Circuit Court of Appeals

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Argued and Submitted

July 16, 1998--Fairbanks, Alaska

Filed September 17, 1998

9635699

VENETIE v ALASKA
Full Faith and Credit given to adoption decrees issued by Tribal Courts

OPINION

FARRIS, Circuit Judge:

The governing bodies of the Native Alaskan villages of Venetie and Fort Yukon as well as two individual residents of those villages won declaratory relief in district court requiring the State of Alaska to give full faith and credit to adoption decrees issued by the villages. The villages now appeal the district court's denial of their motion for attorneys' fees under 42 U.S.C. S 1988. We reverse and remand for an award of attorney's fees.

.After a five-day trial, the district court concluded on remand that the native village of Venetie met the legal test for sovereign tribes. Native Village of Venetie v. Alaska, Nos. F86-0075 & F87-0051, 1994 WL 730893, at *21 (D. Alaska Dec. 23, 1994). The court further concluded that adoption decrees issued by the villages must therefore be afforded full faith and credit under the Indian Child Welfare Act, 25 U.S.C. S 1911(d). Id. at *21-22. Alaska later stipulated that Fort Yukon could also meet the requirements for tribal status. The district court entered a final judgment declaring that Alaska must give full faith and credit to the adoption decrees of both the Venetie and Fort Yukon tribes.

a. The ICWA Claim

In considering our jurisdiction in Venetie II, we held that S 1911(d) of the ICWA gave both the Native villages and their individual residents private rights of action in federal court. Venetie II, 944 F.2d at 553. We reasoned that, given Congress's understanding at the time of passage that statutes passed for the benefit of Indian tribes would "be liberally construed in favor of such tribes," Congress would have expressly precluded a federal cause of action had it intended that none be recognized. Id. at 554. After finding "no reason that Congress would not have intended to give Indian tribes access to federal courts to determine their rights and obligations under the Indian Child Welfare Act," the court held that "Congress's intention to create a tribal cause of action under the Act can be inferred." Id.

FOOTNOTES

1 At oral argument, counsel for the State of Alaska argued that the court lacked subject matter jurisdiction to award fees because the tribes were not

"citizens or other persons" and therefore could not sustain a S 1983 action. The Supreme Court has liberally construed "other persons" for the purposes of S 1983 to include labor unions, see Allee v. Medrano, 416 U.S. 802, 819 n.13 (1974), corporations, Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869, 881 n.9 (1985), and non-profit organizations, NAACP v. Button, 371 U.S. 415, 428 (1963).

Moreover, Ninth Circuit authority supports the conclusion that the plaintiff tribes are "other persons" entitled to sue under S 1983. See Chemehuevi Indian Tribe v. California State Board of Equalization, 757 F.2d 1047, 1954-55 (9th Cir.), rev'd on other grounds, 474 U.S. 9 (1985) (per curiam) (holding that tribe is "person" for purposes of state tax statute). Such a conclusion is also consistent with the broad intent of Congress to "provide a federal remedy for the abridgement of federally secured rights." Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 663 F. Supp. 682, 691 (W.D. Wis. 1987); see also Mille Lacs Band of Chippewa Indians v. Minnesota, 853 F. Supp. 1118, 1127 (D. Minn. 1994).

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IN THE SUPREME COURT OF THE STATE OF MONTANA

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NO. 96-076, 1996

Decided: July 30, 1996

IN THE MATTER OF THE ADOPTION OF JESSICA LYNN RIFFLE, a Youth in Need of Care

Child's Constitutional Rights and Best Interests

Good Cause

Appeal from the Findings of Fact and Conclusions of Law and Order of the Tenth Judicial District Court, Fergus County, concluding that Jessica Lynn Riffle (Jessica) is an Indian child and that, pursuant to the Indian Child Welfare Act, 25 U.S.C. 1901 to 1963 (the ICWA), Jessica's uncle, John Garlick (Garlick) gets the benefit of an adoptive placement preference. We affirm.

The Sirokys present four issues on appeal:

1. Is Jessica an "Indian child" as defined by the ICWA?

2. Does application of the ICWA deny Jessica her constitutional rights?

3. Have Jessica's best interests been addressed?

4. Is the Montana Department of Public Health and Human Services' Department) consent required for the adoption of Jessica pursuant to 40-8-111, MCA?

The background to this case is set forth in this Court's opinion in In re Adoption of Riffle (1995), 273 Mont. 237, 902 P.2d 542. In Adoption of Riffle, Garlick, who is an enrolled member of the Turtle Mountain Band of Chippewa Indians, the Department, and the Turtle Mountain Band of Chippewa Indians (the Tribe) appealed the District Court's grant of the Sirokys' petition for adoption of Jessica. We reversed and remanded for a determination of whether Jessica is an "Indian child" pursuant to 25 U.S.C. 5 1903(4).

In Adoption of Riffle, we held that, in determining whether a child is an "Indian child" pursuant to the ICWA, the Tribe is the ultimate authority on eligibility for tribal membership. Adoption of Riffle, 902 P.2d at 545. The ICWA defines an "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. 5 1903(4). Consequently, we held that the district court erred in relying on the Bureau of Indian Affairs' (BIA) determination that Jessica is ineligible for tribal membership based on her blood quantum. Adoption of Riffle, 902 P.Zd at 545. Furthermore, we held that the Tribe must be allowed to intervene in the proceeding. Adoption of Riffle, 902 P.2d at 545.

On remand, the District Court concluded that the Tribe's determination that Jessica is an Indian child and is a member of the Tribe was conclusive. Thus, the court determined that the ICWA applied to Jessica's adoption. Consequently, although the court found that both the Sirokys and Garlick could provide a loving, caring and secure environment for Jessica, the court concluded that there was no good cause not to follow the ICWA placement preferences and that the ICWA preference favored placement with Jessica's uncle, Garlick. Thus, the court granted Garlick's petition for adoption of Jessica and concluded that it was in

Jessica's best interest to maintain contact with the Sirokys.

.In the instant case, the Tribe filed papers with the District Court officially recognizing Jessica as an Indian child and a "member of the tribe" under the provisions of the ICWA. Contrary to the Sirokys' contention, enrollment of the child in the Tribe is not required so long as the Tribe recognizes the child as a member. .. Given the Tribe's determination that Jessica is an Indian child, we hold that the District Court correctly concluded that the

Tribe's determination was conclusive.

Since Jessica is an Indian child, the ICWA applies to this adoption proceeding. Accordingly, the District Court properly applied the adoptive placement preferences found at 25 U.S.'?. 5 1915. 25 U.S.C. 5 1915(a) provides:

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with

(1) a member of the child's extended family;

(2) other members of the Indian child's tribe; or

(3) other Indian families.

The child's extended family is defined at 25 U.S.C. 5 1903(2) as follows:

"extended family member" shall be as defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparentL.1 [Emphasis added. 1

As Jessica's uncle, Garlick clearly falls within the definition of "extended family member." The District Court was thus correct in giving Garlick the benefit of the adoptive placement preference under 25 U.S.C. 5 1915(a).

2. Does application of the ICWA deny Jessica her constitutional rights?

The Sirokys ask this Court to adopt the rationale of the California appellate court in its recent decision in In re Bridget R. (Cal. Ct. App. 1996) 49 Cal.Rptr.2d 507. In In re Bridget R., the California court held that the ICWA could not be constitutionally applied in the absence of evidence that the biological parents have a significant social, cultural, or political relationship with the Tribe. In re Bridqet R., 49 Cal. Rptr.Zd at 526.

In 1978, Congress passed the ICWA in response to a significant threat to the integrity of Indian cultures caused by the alarmingly high incidence of often unwarranted removal of Indian children from their families. 25 U.S.C. lYOl(4). Congress declared that "it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families. /I 25 U.S.C. 1902.

As this Court has previously stated, we share Congress' concern and support its policy. In re Baby Girl Jane Doe (1993), 262 Mont. 380, 385, 865 P.2d 1090, 1092; In re M.E.M. (1981), 195 Mont. 329, 333, 635 P.2d 1313, 1315-16. In & re M.E.M., we stated that it was our constitutional duty to preserve the unique cultural heritage and integrity of the American Indians. Mont. Const. art. X, l(2); In re M.E.M., 635 P.2d at 1316.

Moreover, in Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.Zd 29, the United States Supreme Court affirmed the intent and purposes of the ICWA. In In re Baby Girl Doe, we discussed Mississippi Choctaw at length and concluded that "the principal purposes of the Act are to promote the stability and security of Indian tribes by preventing further loss of their children; and to protect the best interests of Indian children by retaining their connection to their tribes." In re Baby Girl Doe, 865 P.2d at 1095. Accordingly, we hold that the application of the ICWA does not deny Jessica her constitutional rights and we decline to adopt the California Court's approach in In re Bridset R.

3. Have Jessica's best interests been addressed?

The Sirokys contend that the District Court should have made a "best interest" analysis under 40-E-109, MCA, outside the restrictions, preferences or limitations of the ICWA.

However, since we affirm the District Court's determination that the ICWA applies to this adoption, a determination of "best interests" under Montana law would be inappropriate. The ICWA expresses the presumption that in an adoptive placement of an Indian child, the child's best interests are best served by placement with an extended family member. 25 U.S.C. 1915(a) (1). To overcome this preference, a party must establish the existence of "good cause to the contrary." 25 U.S.C. 1915(a) (1). BIA guidelines provide "good cause to the contrary" must be based upon one or more of the following considerations:

(i) The request of the biological parents or the child when the child is of sufficient age.

(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.

(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.

Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,594 (1979). At least two courts which have interpreted the "good cause" exception of 25 U.S.C. 1915 have determined that courts may consider the best interests of the child in determining whether the exception applies. In Matter of Adoption of F.H. (Alaska 1993), 851

P.2d 1361, and Adoption of M. (Wash. Ct. App. 1992), 832 P.2d 518. The Minnesota Supreme Court, however, has rejected this interpretation and we agree. The Minnesota Supreme Court held that:

"We believe, however, that a finding of good cause cannot be based simply on a determination that placement outside the preferences would be in the child's best interests. The plain language of the Act read as a whole and its legislative history clearly indicate that state courts are a part of the problem the ICWA was intended to remedy. See Mississippi Band of Choctaw Indians, 490 U.S. at 44-45, 109 S.Ct. at 1606-07. The best interests of the child standard, by its very nature, requires a subjective evaluation of a multitude of factors, many, if not all of which are imbued with the values of majority culture. It therefore seems "most improbable" that Congress intended to allow state courts to find good cause whenever they determined that a placement outside the preferences of 1915 was in the Indian child's best interests. Cf. Mississippi Band of Choctaw Indians, 490 U.S. at 45, 109 S.Ct. at 1606-07.

Matter of Custody of S.E.G. (Minn. 1994), 521 N.W.Zd 357, 362-63.

1 We note that in In re M.E.M., we stated that, in determining whether to transfer jurisdiction to the tribal court, "the best interest of the child could prevent transfer of jurisdiction upon 'clear and convincing' showing by the State." In re M.E.M., 635 P.2d at 1317. In the instant case, however, we are not considering the transfer of jurisdiction to a tribal court; rather, we are

considering adoption placement preferences under 25 U.S.C. 5 1915(a) (1). Thus, In re M.E.M. is not controlling on this issue.

Although the District Court cited Adoption of M. and concluded that "there was no good cause not to follow the placement preference and Garlick's adoption is in the best interests of the child" (emphasis added), that conclusion, to the extent that it determines "best interests," is an unnecessary and inappropriate analysis under the ICWA. The determination that there was no "good cause" not to follow the ICWA placement preference was sufficient.

In the present case, the record clearly supports the conclusion that there was no "good cause" for overcoming the placement preferences of the ICWA: the Department had approved

Garlick as providing an approved adoptive home; Garlick is bonded with Jessica; he had significant contact with her during the first 18 months of her life; he is Jessica's uncle and, as such, is part of her extended family; Jessica's natural mother supported Garlick as the adoptive parent for Jessica, and; the Department supports Garlick as the adoptive parent for Jessica.

We affirm the District Court's decision to adhere to the adoption preferences established by the ICWA.

Judge Karla Gray Dissent:

.I disagree with the Court's conclusion that the Tribe's "recognition" of Jessica as a member of the Tribe meets either definition of an "Indian child" under the ICWA. I do not find of record any statement by the Tribe that Jessica either & a member of, or is eligible for membership in, the Tribe. What the Tribe does say is that Jessica is "recognized as a member during her childhood." It is my view that the ICWA requires more than this.

Thus, while I agree with the Court that the language of the ICWA does not require that the child actually be enrolled as a member, the ICWA does require that the child be a member or eligible for membership. No clear and unequivocal determination to either effect has been made by the Tribe.

Notwithstanding my disagreement with the Court over whether the ICWA applies here, however, I also would affirm the District court. The District Court determined that it is in Jessica's best interests to be adopted by her uncle, John Garlick, and there is a surfeit of evidence on the record to support that determination.

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IN THE SUPREME COURT OF THE STATE OF MONTANA

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No. 96-520, 1998 MT 43

Decided: March 3, 1998

IN RE MARRIAGE OF SHANE COLIN SKILLEN,

Indian jurisdiction law law in relationship to UCCJA and PKPA

1 The petitioner, Shane Skillen, filed a petition for dissolution of his marriage to the respondent, Stacey Skillen, in the District Court for the Sixteenth Judicial District in Rosebud County. After a nonjury trial the District Court entered an order granting joint custody of their child, Kinsey, to Shane and Stacey. Thereafter, the Fort Peck Tribal Court entered a temporary joint custody order in favor of Stacey, and she filed a motion to dismiss in the District Court. The District Court first entered a final decree of dissolution, and then denied the motion to dismiss. Stacey appeals. We reverse the order of the District Court and remand this case to the District Court for proceedings consistent with this opinion.

2 The sole issue on appeal is whether the District Court has subject matter jurisdiction to determine the custody of an Indian child when the child, along with his enrolled mother, resides on a reservation, and the father, who is non-Indian, resides off the reservation.

FACTUAL BACKGROUND

3 Shane Skillen and Stacey Menz married on May 13, 1993. They were both twenty years old and students at Dawson Community College in Glendive at the time. Two days after the marriage, Shane began work at the Rosebud County Sheriff's Department in Forsyth, where his parents reside; Stacey, an enrolled member of the Fort Peck Tribes, returned to the Fort Peck Indian Reservation and began temporary work at the Fort Peck Tribal Health Office in Poplar. On approximately August 20, 1993, Stacey stopped work at the Tribal Health Office, and on August 29, 1993, she gave birth to their son, Kinsey Charles Skillen, in Custer County. Kinsey is also an enrolled member of the Fort Peck Tribes. Shane is non-Indian.

4 The parties dispute if and when Stacey actually maintained a residence with her grandmother on the Fort Peck Reservation. The parties also dispute where Stacey and Kinsey maintained their residence after Kinsey's birth, although it appears clear that they spent considerable time both in Forsyth with Shane and on the Reservation with Stacey's grandmother. At all times throughout this matter, both Shane and Stacey have received substantial support and assistance from their extended families in their efforts to raise Kinsey.

5 In January 1994, Shane filed a petition for dissolution of the marriage in the District Court for the Sixteenth Judicial District in Rosebud County; he brought Stacey and Kinsey to Forsyth and served the petition on her there. The District Court conducted a hearing, and on February 18, 1994, granted temporary custody to both parties, with physical custody alternating every two weeks. At the time of the court's order, Shane lived in Forsyth and Stacey, apparently, resided on the Reservation.

6 In July 1995, the District Court conducted a nonjury trial. In January 1996, it ordered that Shane and Stacey share joint custody of Kinsey, and that Shane would be the primary residential custodian. On February 3, 1996, Stacey exercised her visitation privilege and took custody of Kinsey from Shane. She failed, however, to return Kinsey to Shane on February 10, as the parties had arranged. On February 9, 1996, she sought and received from the Fort Peck Tribal Court an order awarding her temporary custody of Kinsey. A few weeks later, Shane, with the help of the Richland County Sheriff's Department, located Stacey and Kinsey, and had Kinsey returned to him. Shane has apparently maintained physical custody of Kinsey since that time.

7 On March 11, 1996, Stacey filed a motion in the District Court pursuant to Rule 60, M.R.Civ.P., and Rule 12(h), M.R.Civ.P., to dismiss the case for lack of subject matter jurisdiction. She asserted that the Tribal Court had exclusive jurisdiction over the matter by virtue of Stacey's and Kinsey's residence on the Reservation at the time that Shane originally filed for dissolution, and that it exercised its jurisdiction when it granted the temporary custody order. On June 18, 1996, the District Court stated that it had jurisdiction over the case and issued its final decree of dissolution in which it granted the parties joint custody and declared Shane to be the primary residential custodian. After the parties briefed the issue, the District Court, on July 26, 1996, found that Kinsey had significant contacts on and off the Reservation, and that as such, the District Court shared concurrent jurisdiction with the Tribal Court. Therefore, it denied the motion to dismiss.

DISCUSSION

8 Does the District Court have subject matter jurisdiction to determine the custody of an Indian child when the child, along with his enrolled mother, resides on a reservation, and the father, who is non-Indian, resides off the reservation?

9 Whether to dismiss a claim based on lack of subject matter jurisdiction is a question of law. We review a district court's conclusion of law to determine if it is correct. See Poteat v. St. Paul Mercury Ins. Co. (1996), 277 Mont. 117, 119, 918 P.2d 677, 679. See also Matter of Beneficial Water Use Permit Nos. 66459-76L, Ciotti; 64988-G76L, Starner (1996), 278 Mont. 50, 54, 923 P.2d 1073, 1076.

10 A motion to dismiss based on lack of subject matter jurisdiction may be raised at any time and by either party, or by the court itself. See Rule 12(h)(3), M.R.Civ.P.; State v. Tweedy (1996), 277 Mont. 313, 315, 922 P.2d 1134, 1135; Wippert v. Blackfeet Tribe of Blackfeet Indian Reservation (1993), 260 Mont. 93, 102, 859 P.2d 420, 425. Also, a party cannot waive or confer by consent jurisdiction when there is no legal basis for the court to exercise jurisdiction. See In re Marriage of Miller (1993), 259 Mont. 424, 427, 856 P.2d 1378, 1380. Therefore, despite the District Court's intimation in its order that Stacey waived Tribal jurisdiction by indicating she would not invoke it, it was proper for Stacey to raise the issue of the District Court's jurisdiction when she did.

11 Stacey's challenge to the District Court's jurisdiction raises a matter of first impression before this Court: In light of Indian jurisdiction law and child custody principles, we must determine whether a district court has jurisdiction in a custody proceeding involving an Indian child and an Indian parent when both reside on Indian land, and a non-Indian parent who does not reside on Indian land. It presents this Court with a significant legal and policy question and requires that we synthesize the independently complex areas of Indian jurisdiction and child custody jurisdiction.

12 The issue of jurisdiction considers a court's right to determine and hear an issue. As such, it "transcends procedural considerations and involves the fundamental power and authority of the court itself." Wippert, 260 Mont. at 102, 859 P.2d at 425. Accordingly, our inquiry into the jurisdictional conflict between a tribal court and a state district court extends to the even more fundamental issue of the interaction between tribal and state authority.

A. Tribal Jurisdiction in General

13 It is well established that Indian tribes maintain certain powers of self-government over reservation activities, such that states may not exercise jurisdiction regarding these areas of tribal government. The exclusive nature of Indian tribes' authority in this regard is based on two distinct grounds: (1) federal supremacy, and (2) tribal sovereignty. See White Mountain Apache Tribe v. Bracker (1980), 448 U.S. 136, 142-43, 100 S. Ct. 2578, 2583, 65 L. Ed. 2d 665, 672.

14 Congress has the authority to regulate Indian tribes, and where federal law exists, state courts lack jurisdiction. See White Mountain Apache Tribe, 448 U.S. at 142, 100 S. Ct. at 2583, 65 L. Ed. 2d at 672. "State jurisdiction is pre-empted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority." New Mexico v. Mescalero Apache Tribe (1983), 462 U.S. 324, 334, 103 S. Ct. 2378, 2386, 76 L. Ed. 2d 611, 620 (stating that the application of state hunting and fishing laws to nonmembers on the reservation was preempted by federal law and the tribe's own regulatory scheme).

15 In the 1950s, Congress transferred to six states its civil and criminal jurisdiction over Indian lands, and allowed other states, including Montana, to assume jurisdiction by their own legislative action. See Pub. L. No. 53-280, Act of August 15, 1953, 67 Stat. 588. The 1968 Indian Civil Rights Act repealed that portion of P.L. 280 that permitted states like Montana to unilaterally assume jurisdiction over Indian lands, and thereafter required the affected tribe to consent to the state assumption of jurisdiction. See 25 U.S.C. __ 1321, 1322, and 1326.

16 Here, domestic matters are generally within the province of states (and tribes) and not Congress. See In re Burrus (1890), 136 U.S. 586, 593-94, 10 S. Ct. 850, 853, 34 L. Ed. 500, 503 ("The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."). As will be discussed below, Congress has in recent years legislated in the area of child custody and specifically Indian child custody. Those federal acts, however, do not govern these facts, nor do they operate presumptively to preempt state authority in favor of the tribe's authority. Moreover, Montana has not assumed jurisdiction over the Fort Peck Tribes pursuant to P.L. 280. Accordingly, the jurisdictional framework for our analysis should be based not on preemption, but on the interaction between tribal and state courts in terms of tribal sovereignty.

17 Where Congress has not exercised its authority over Indian tribes, tribes are generally presumed to maintain their inherent tribal sovereignty over Indian land. See Fisher v. District Court (1976), 424 U.S. 382, 96 S. Ct. 943, 47 L. Ed. 2d 106; In re Marriage of Wellman (1993), 258 Mont. 131, 137, 852 P.2d 559, 563. Without express federal law to declare the total lack of state authority, however, questions as to state versus tribal authority naturally arise. The most commonly cited method to determine whether a state has authority in a matter is the Williams infringement test: "Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee (1959), 358 U.S. 217, 220, 79 S. Ct. 269, 271, 3 L. Ed. 2d 251, 254. See also Iowa Mut. Ins. Co. v. LaPlante (1987), 480 U.S. 9, 107 S. Ct. 971, 94 L. Ed. 2d 10 (emphasizing the retained sovereignty of Indian tribes over their members and their territory where Congress has failed to assert its authority); State ex rel. Iron Bear v. District Court (1973), 162 Mont. 335, 342, 512 P.2d 1292, 1297 ("The guide lines are set down in Williams and as long as the state does not violate those guide lines and does not attempt to exercise jurisdiction over areas of the law where there is either a governing Act of Congress or an infringement on reservation self-government, it may continue to exercise jurisdiction.").

18 The United States Supreme Court held in Montana v. United States (1981), 450 U.S. 544, 564, 101 S. Ct. 1245, 1258, 67 L. Ed. 2d 493, 509-10, that without federal authorization, a tribe's power to exercise its sovereignty does not extend "beyond what is necessary to protect tribal self-government or to control internal relations . . . ." See also Oliphant v. Suquamish Indian Tribe (1978), 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (stating that tribal sovereignty does not authorize criminal jurisdiction over non-Indians).

B. Child Custody Jurisdiction

.22 The Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by all fifty states. Montana has codified the UCCJA at __ 40-7-101 to -125, MCA, and incorporates _ 3 of the UCCJA at _ 40-4-211, MCA, to determine the initial matter of child custody jurisdiction. In conjunction with the federal Prevention of Parental Kidnaping Act (PKPA), 28 U.S.C. _ 1738A, the UCCJA operates to clarify which among competing jurisdictions shall determine matters of child custody.

.But see Desjarlait v. Desjarlait (Minn. Ct. App. 1985), 379 N.W.2d 139, 143 ("[T]he UCCJA does not apply to jurisdictional disputes between a state court and a tribal court"); Malaterre v. Malaterre (N.D. 1980), 293 N.W.2d 139, 144 (refusing to resolve a child custody issue between a tribal court and a state court on the basis of the UCCJA, based on the fact that the UCCJA "pertains to fact situations which involve jurisdictional disputes with sister states").

24 The purposes of the UCCJA are, in part, to:..

31 Of course, this says nothing about the unique status of Indian children. The case before us ultimately turns on the jurisdictional power of a state court over an Indian parent and an Indian child who may reside on a reservation, not just on a strict application of the terms of the UCCJA. However, the powerful policy statements reflected in these child custody laws and their commitment to the best interests of the child only take on enhanced meaning when we consider the Indian Child Welfare Act (ICWA) and the reasons that motivated Congress to enact it.

C. Indian Child Welfare Act

32 In 1978, Congress passed the ICWA, 25 U.S.C. 1901-63, to protect the best interests of Indian children and to promote the security of Indian tribes. See 25 U.S.C. 1902. Its primary means of achieving this goal was to ensure that tribes played an expanded role in custody proceedings that involved Indian children. This Court has repeatedly affirmed the intent of the ICWA and sought to implement its presumptions in favor of a tribal role in Indian child custody proceedings.

34 The crux of the ICWA is to provide tribal courts with exclusive jurisdiction in "child custody proceedings" that involve Indian children. However, it expressly excludes from its definition of "child custody proceedings" custody disputes arising from an award in a marriage dissolution..

36 In effect, Congress declared through the ICWA that a custody determination by the tribal court is unequivocally in the best interests of the child when the child resides on Indian land. It states: "An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child." 25 U.S.C. 1911(a). Where the child does not reside on Indian land, the ICWA directs the state court, "in the absence of good cause to the contrary, [to] transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent . . . or the Indian custodian or the Indian child's tribe." 25 U.S.C. 1911(b). Either way, the tribal court is presumed to have jurisdiction over a custody proceeding that involves an Indian child.

..55 We reiterate here that the best interests of the child should be the predominant factor in the determination of which court should have jurisdiction in a matter that involves an Indian child. We further assert that in any matter so essential to tribal relations as a custody matter involving an Indian parent and Indian child who reside on Indian land, we must presume that the tribal court has jurisdiction and consider the potential state exercise of jurisdiction in terms of its infringement on tribal sovereignty. Based on these two criteria, we conclude as a matter of law that a more reasoned approach for the courts of this state is to recognize exclusive tribal jurisdiction in child custody proceedings between parents where at least one parent is an Indian and that parent resides on the reservation with an Indian child.

.57 Where a state court's exercise of jurisdiction would infringe on the tribe's right to govern itself, the state may not exercise jurisdiction and the tribal court is recognized as having exclusive jurisdiction. See Fisher, 424 U.S. at 389, 96 S. Ct. at 948, 47 L. Ed. 2d at 113 ("Since the adoption proceeding is appropriately characterized as litigation arising on the Indian reservation, the jurisdiction of the Tribal Court is exclusive.").

. 59 The facts before us are a variation of previously discussed situations. They present one non-resident, non-Indian parent, and one Indian parent and an Indian child who reside on the Reservation, which indicates that a determination by the tribal court would extend the tribal authority to more than just its own members. More importantly, the nature of a custody dispute between a resident Indian parent and a non-resident, non-Indian parent means that it lacks a clear status either on or off the reservation. Nonetheless, we are not without guidance about how to interpret a tribe's sovereignty and its attendant right of self-government in this context.

60 The ICWA is one source. It clearly articulates how important Indian children are to the continued existence of Indian tribes within this country. See 25 U.S.C. _ 1901(3) ("[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children"). Especially when Indian children reside on the reservation, they represent the single most critical resource to the tribe's ability to maintain its identity and to determine its future as a self-governing entity. As such, we cannot think of a more legitimate and necessary manifestation of tribal self-government than the tribe's right to have a role in a custody determination of its member children who reside on the reservation with an enrolled parent. Any exercise of state court jurisdiction over reservation Indians in a domestic matter, which is already recognized by this court as uniquely tribal in nature, much less over the tribe's legacy--its children--would clearly infringe on the tribe's sovereign power to govern itself and its right to keep its internal relations free from state authority. See In re M.R.D.B., 241 Mont. at 459, 787 P.2d at 1221 ("[T]hese practices seriously undercut the tribes' ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.") (quoting Congressional testimony on the ICWA cited in Mississippi Band of Choctaw Indians, 490 U.S. at 34, 109 S. Ct. at 1601, 104 L. Ed. 2d at 37).

61 As the U.S. Supreme Court stated in Fisher, state exercise of authority may bring about a corresponding decline in tribal authority. See also Bertelson, 189 Mont. at 539, 617 P.2d at 129 ("An assumption of state court jurisdiction over Indian child custody disputes poses a substantial risk of conflicting decisions which potentially threaten a decline in tribal authority."). We decline here to undermine the tribe's position as a sovereign entity with the suggestion that merely because a resident Indian child also has significant off-reservation contacts through his non-Indian parent, its authority to exercise jurisdiction in domestic matters over its members who reside on Indian land is put in jeopardy. As the conceptual safeguard on which tribes depend to protect their identity, sovereignty must include at least the right to exercise authority over members within tribal boundaries.

.63 At its core, our decision to recognize exclusive jurisdiction for the tribal court in a child custody matter that involves an Indian child and at least one Indian parent who reside on the Reservation is based on the best interest of the child.

64 We recognize in the UCCJA and the PKPA the fundamental and overwhelming opposition to jurisdictional disputes in matters of child custody. They clearly stand for the idea that as long as courts fight over who will eventually determine custody of the child, the child's future hangs in the balance, and as has been well established, that delay is not in the child's best interests.

.68 We recognize here that when the child does not reside on the reservation, child custody principles do not necessarily favor recognition of exclusive jurisdiction for the tribe as clearly as when the Indian child resides on the reservation. In addition, the tribe's sovereignty is less at stake, since sovereignty is implicated most seriously in matters that involve tribal members on the reservation; although Indian children manifest a fundamental aspect of the tribe's sovereign power, when the child does not reside on the reservation the tribe's authority is not so clearly undermined by the exercise of state jurisdiction. Accordingly, we hold that when an Indian child resides off the reservation, the state court and tribal court share concurrent jurisdiction.

69 However, we note that even when tribal jurisdiction is not exclusive, this Court has been reluctant to suspend the tribal court's jurisdiction just because a state court may have concurrent jurisdiction in a custody proceeding of an Indian child. See Bertelson, 189 Mont. at 532, 617 P.2d at 126 ("[W]e do not believe that state courts should, in a case of this nature, automatically assume jurisdiction. That a state court may assume jurisdiction in a case of this nature is not to say that it should.").

CONCLUSION

71 Here, the record is unclear about where the child resided when Shane initiated the dissolution. "Because the welfare of an innocent young child is at stake, we are concerned that a final decision of the jurisdictional questions presented be based on accurate factual information." Bertelson, 189 Mont. at 529, 617 P.2d at 124. Although the record indicates that Shane served Stacey with the petition for dissolution off the reservation, and that all the parties, including Kinsey, were present at the time, we reject the notion that their mere presence in Forsyth at the time is enough to establish residence and, consequently, concurrent jurisdiction for the state court. See _ 40-4-211(2), MCA.

..73 We reverse the District Court's order. We remand to the District Court to determine first the residence of Stacey and the child. If it finds that Kinsey and Stacey were residents of the reservation, pursuant to our holding here, it can take no further action other than to dismiss the case. See Rule 12(h)(3) M.R.Civ.P.; Gieger v. Pierce (1988), 233 Mont. 18, 21, 758 P.2d 279, 281; In re Marriage of Lance (1984), 213 Mont. 182, 186, 690 P.2d 979, 981.

.74 We further order the District Court, if it finds that the child was not a resident of the reservation and that it shares concurrent jurisdiction with the tribal court, to consider the factors from Bertelson that we describe above so as to determine whether the tribal court or the District Court would be better able to determine the best interests of the child.

Justice James C. Nelson specially concurring in part and dissenting in part.

75 I concur with the majority that a district court, prior to assuming jurisdiction over a child custody proceeding when such jurisdiction is shared concurrently with a tribal court, must conduct an inquiry based on the factors enumerated in the majority opinion to determine whether the court should accept or decline to exercise that jurisdiction. Furthermore, I agree that in the case at bar the District Court record is unclear as to the residency of both Stacey and Kinsey. In this regard, due to the importance, complexity and sensitivity of this case, I concur with the majority's decision to remand this case to the District Court to determine Stacey's and Kinsey's residence at the time Shane filed a petition for dissolution with the District Court. However, because this dissolution involves both an Indian parent and a non-Indian parent who has never resided on the Reservation as well as a child who shares each parent's heritage, I disagree with the majority that Stacey's and Kinsey's residence either on or off the Reservation is determinative of whether the Tribal Court has exclusive or concurrent subject matter jurisdiction. Rather, I would conclude that regardless of Stacey's and Kinsey's residence on or off the Fort Peck Reservation, the District Court and the Fort Peck Tribal Court share concurrent jurisdiction in this case. Consequently, the District Court should consider Stacey's and Kinsey's residence as only one of the many factors set forth in the majority opinion to determine which court would provide the most appropriate forum for determining Kinsey's custody, and, therefore, which court should exercise jurisdiction. Upon this basis, I respectfully dissent.

76 The express exclusion of divorce proceedings from the ICWA's coverage illustrates Congress' intent that state and tribal courts should share concurrent jurisdiction over Indian child custody proceedings arising within a divorce proceeding between an Indian parent and a non-Indian parent.

..79 In a subsequent case, the court explained that under this concurrent jurisdiction, the court which first obtained valid personal jurisdiction over the parties could adjudicate the case. Harris v. Young (S.D. 1991), 473 N.W.2d 141, 145. In Harris, the South Dakota Supreme Court determined that state and tribal courts share concurrent jurisdiction over divorce actions between an Indian party domiciled on a reservation and a non-Indian party domiciled elsewhere within the state. Harris, 473 N.W.2d at 145. The court explained that concurrent subject matter jurisdiction in this case was even more compelling than in Wells because one of the parties was not an enrolled member of the tribe and had never been domiciled on the reservation. Harris, 473 N.W.2d at 145.

..86 In this regard, not only did Stacey improperly petition the Tribal Court for child custody, but the Fort Peck Tribal Court improperly jumped into this case with its interim custody order while the District Court was still exercising jurisdiction. The point to be made is that while one sovereign's courts are exercising jurisdiction, another sovereign's courts should abstain until the forum court settles any attack upon its jurisdiction. Here, Stacey did the same opportunistic, self-serving thing condemned by the South Dakota Supreme Court in Harris. That is, Stacey happily used the District Court while things went her way, but abandoned the District Court in favor of the Tribal Court when it served her purposes to do so.

87 The majority concludes that a tribal court has exclusive jurisdiction over "child custody proceedings between parents where at least one parent is an Indian and that parent resides on the reservation with an Indian child." To support this conclusion, the majority relies primarily on the second exception to the general rule in Montana and on inapplicable statutory law as set forth in the UCCJA, the PKPA, and the ICWA. The majority justifies this conclusion by explaining that "[a]t its core, our decision to recognize exclusive jurisdiction for the tribal court in a child custody matter that involves an Indian child and at least one Indian parent who reside on the Reservation is based on the best interest of the child."

88 Yet, "[o]ur case law establishes that, absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances." Strate, ___ U.S. at ___, 117 S.Ct. at 1409, 137 L.Ed.2d at 670 (discussing Oliphant, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209, and Montana, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493). Here, the majority strains to "give" tribal courts exclusive jurisdiction over nonmember parents in child custody proceedings involving Native American children by wedging inapplicable legislation, namely, the UCCJA, the PKPA and the ICWA, into the second Montana exception. That is, the majority awkwardly struggles to pound a square peg into a round hole. And, in doing so, they have destroyed the line separating judicial and legislative authority and have improperly legislated new law to effectuate the benevolent goal of ensuring that child custody placement as between parents is in the best interests of Indian children.

89 While I agree that in any child custody proceeding the best interests of the child standard should factor predominantly, I disagree that based on this reason alone, this Court should disregard the fundamental concept of separation of powers. Furthermore, I disagree that the best interests of the child standard should be used as the controlling principle to determine whether a court possesses subject matter jurisdiction over a child custody case as a matter of law. Rather, only after concluding that it possesses subject matter jurisdiction should a court use the best interests of the child standard as a controlling principle to determine whether to exercise that jurisdiction. See Bertelson, 189 Mont. at 538, 617 P.2d at 129.

. 94 Next, the majority "analogiz[es] to the policy considerations of the UCCJA and the PKPA." In doing so, the majority acknowledges that the definition of "state" used in the UCCJA and the PKPA does not specifically include Indian tribes. Despite this, the majority characterizes the omission as "of no consequence to the policy-based analysis of the UCCJA and the PKPA that we engage here." And with this disclaimer, the majority boldly states that "we will compare Indian tribes to territories within the meaning of the UCCJA and the PKPA definition of 'state.' " To support this comparison, the majority cites cases from other jurisdictions as well as our decision in Day, 272 Mont. 170, 900 P.2d 296.

.95 Not only does our decision in Day fail to legitimize the majority's comparison, but an opinion issued by the Ninth Circuit Court of Appeals, Wilson v. Marchington (9th Cir. 1997), 127 F.3d 805, sets forth an analysis showing the impropriety of such a comparison. In Marchington, the Ninth Circuit Court of Appeals concluded that principles of comity, not principles of full faith and credit, govern whether a district court should recognize and enforce a tribal court judgment. Marchington, 127 F.3d at 808. To reach this conclusion, the court noted that, by its own terms, the Full Faith and Credit Clause, Article IV, Section 1 of the United States Constitution, only applies to states. Marchington, 127 F.3d at 808. Furthermore, the court noted that the initial legislation implementing this constitutional clause, 28 U.S.C. _ 1738, passed in 1790 and modified in 1804, was only modified to include territories and possessions. Marchington, 127 F.3d at 808. No where were Indian tribes referenced in either the constitutional clause or the implementing legislation. Marchington, 127 F.3d at 808.

96 The court considered many factors to conclude that Congress did not intend to include Indian tribes under the Full Faith and Credit Clause. Marchington, 127 F.3d at 808-09. First, the court pointed out that subsequent statutes, including the ICWA, 25 U.S.C. __ 1901 et seq., expressly extended full faith and credit to certain tribal proceedings. Marchington, 127 F.3d at 809. The court concluded that such an inclusion would not have been necessary if full faith and credit had already been extended to the Indian tribes. Marchington, 127 F.3d at 809. Second, the court specifically noted that Congress' separate listing of territories, possessions and Indian tribes in the ICWA indicated that Congress did not consider these terms as synonymous. Marchington, 127 F.3d at 809. Further, the court pointed out that if Congress intended to include Indian tribes under 28 U.S.C. 1738, it could have either made specific reference to them in the 1804 amendments or made additional amendments to the statute after ambiguous judicial constructions surfaced. Marchington, 127 F.3d at 809. The court concluded:

Given this history, it would be imprudent of us to now construe the phrase "territories and possessions" in the 1804 statute to assume the meaning of the language Congress used in the Indian Child Welfare Act ("every territory or possession of the United States, and every Indian tribe") (emphasis added) and the Indian Land Consolidation Act.

Certainly, there are policy reasons which could support an extension of full faith and credit to Indian tribes. Those decisions, however, are within the province of Congress or the states, not this Court. Full faith and credit is not extended to tribal judgments by the Constitution or Congressional act, and we decline to extend it judicially. Marchington, 127 F.3d at 809.

.102 Furthermore, in addition to considering the policies of the UCCJA and the PKPA, the majority relies heavily on the ICWA to conclude that the tribal court should exercise exclusive jurisdiction over child custody proceedings between parents involving an enrolled parent who resides on the reservation with the Indian child. This, too, is improper. The ICWA excludes from coverage "a placement based . . . upon an award, in a divorce proceeding, of custody to one of the parents." 25 U.S.C. 1903(1). As the Bureau of Indian Affairs (BIA) commented in its guidelines for state courts:

Child custody disputes arising in the context of divorce or separation proceedings or similar domestic relations proceedings are not covered by the [ICWA] so long as custody is awarded to one of the parents. . . . The entire legislative history makes it clear that the [ICWA] is directed primarily at attempts to place someone other than the parent or Indian custodian in charge of raising an Indian child--whether on a permanent or temporary basis.

.105 Correspondent with this separation of powers clause is the statutory rule of construction that "the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted."

.106 While this canon of construction is modified in federal Indian law to resolve doubtful expressions of legislative intent in favor of Native Americans, this modified canon also "does not permit reliance on ambiguities that do not exist; nor does it permit disregard of the clearly expressed intent of Congress." .The rule of construction [regarding the resolution of ambiguous statutory language in favor of Native Americans] to which the Tribe alludes reflects a strong federal interest in safeguarding Indian autonomy. But the rule is apposite only when Congress has blown an uncertain trumpet. If ambiguity does not loom, the occasion for preferential interpretation never arises.

.107 Consequently, because the statutory provisions of the UCCJA, the PKPA, and the ICWA, by their own terms, are inapplicable to the case at bar, the majority's application of these provisions to justify "giving" tribal courts exclusive jurisdiction over nonmember parents in child custody proceedings involving Native American children creates improper judicial legislation. Such an imprudent violation of the constitutional prohibition against courts exercising legislative power could easily be avoided while still compelling the recognition of the best interest of the child standard simply by recognizing that the state and tribal courts share concurrent jurisdiction in these child custody matters and admonishing state courts to carefully consider, on a case by case basis, whether such jurisdiction should be assumed using the factors enunciated in the majority opinion.

108 Recognition of concurrent jurisdiction would allow us to follow the more flexible inquiry described in Bertelson in all interparental child custody disputes involving Native American children. That is, "[t]he matter could be more rationally approached as a question of restraint on the part of state courts in the exercise of jurisdiction, rather than an absolute absence of authority." Barbara Ann Atwood, Fighting Over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 U.C.L.A. L. Rev. 1051, 1104 (1989). Such an approach would not only respect the parens patriae role of both the state and the tribe, but would also acknowledge each forum's competence in determining whether exercise of its own jurisdiction would serve the best interest of the Indian child. Not to mention that such an approach in child custody matters would also encourage the cooperation between state and tribal courts overall.

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 IN THE SUPREME COURT OF THE STATE OF MONTANA

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No. 98-0701998 MT 176

Decided: July 16, 1998

IN THE MATTER OF A.P., A Youth in Need of Care.

Successful Good Cause

Justice James C. Nelson delivered the Opinion of the Court.

Background

A.P. was born in Great Falls, Montana, on March 27, 1995. He and his biological mother, J.P., were domiciled in and residents of Great Falls. Great Falls is not located within the exterior boundaries of any Indian reservation. A.P.'s father has had no contact with the child or his mother since A.P. was born. J.P. is listed as one-half "Indian" in the Fort Belknap Tribal enrollment book; other evidence presented to the District Court indicates that she is part Assiniboine.

Whether A.P. is eligible for tribal membership, and is, thus, an "Indian Child" for purposes of the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901-63, is in dispute. According to Bureau of Indian Affairs records, A.P. is not eligible for enrollment in the Fort Belknap Indian Community. A Tribal historian, however, testified that A.P. may be enrollable as either an Assiniboine or as a Gros Ventre by reason of his quantum of Indian blood. The Tribes' motion to transfer alleges that A.P. is eligible for enrollment in the Assiniboine Tribe. For purposes of our decision here, we assume, arguendo, that A.P. is eligible for membership in one of these tribes and is, thus, an "Indian Child" for purposes of the ICWA, 25 U.S.C. 1903(4). See also Adoption of Riffle (1995), 273 Mont. 237, 242, 902 P.2d 542, 545 (Riffle I) (tribe is the ultimate authority on eligibility for tribal membership).

In September 1995, based upon information that A.P. was in danger as a result of J.P.'s long-standing chemical abuse problems, the Montana Department of Public Health and Human Services (DPHHS) obtained an order for temporary investigative authority (TIA) and custody from the District Court. DPHHS notified the Tribes of these proceedings in accordance with the ICWA, 25 U.S.C. 1912(a), and counsel was appointed for J.P., 25 U.S.C. 1912(b). Counsel was also appointed for A.P.

DPHHS maintained custody of A.P. and worked with J.P. in an attempt to reconcile mother and child. Ultimately, however, J.P. was unable to complete her treatment plan. Various court proceedings with respect to A.P. occurred between September 1995 and before the closing of the case on DPHHS's petition for permanent custody and approval of preadoptive placement on June 9, 1997. Specifically, there was a show cause hearing on September 27, 1995, with respect to continuing the TIA; there was an adjudicatory hearing on the state's petition for legal custody on April 25, 1996; there was a hearing on October 22, 1996, to terminate A.P.'s father's parental rights and to terminate J.P.'s parental rights, the latter by consent; and the permanent custody award and permanency plan were set for review on June 5, 1997. On June 9, 1997, the court issued its written order awarding the state permanent legal custody and closing the matter, acknowledging that DPHHS had made an appropriate plan for A.P.'s permanency.

The Tribes were given timely notice of each proceeding in accordance with 25 U.S.C. 1912(a). Furthermore, the Tribes received copies of the various petitions and motions filed in the state court proceedings along with copies of the District Court's orders resulting therefrom. Notwithstanding, the Tribes did not move to transfer A.P.'s case to Tribal Court, did not move to intervene, and did not appear or file documents in any of these proceedings prior to the court's June 9, 1997 order. On July 7, 1997, however, approximately one month after the case was closed and twenty-two months after first receiving notice of the proceedings involving A.P., the Tribes first appeared, moving to transfer A.P.'s case to Tribal Court under the ICWA.

Apart from the proceedings in District Court, once custody had been awarded to DPHHS, this agency exercised its authority to make administrative placement decisions for A.P. In accordance with the placement preferences and spirit of the ICWA, DPHHS worked with the Tribes to attempt placement on the reservation and in accordance with J.P.'s wishes. In March 1997, DPHHS placed A.P. with a Fort Belknap Reservation family in accordance with the Tribes' request. That placement failed when the family requested that the State remove A.P. from their home. The Tribes offered no other appropriate placements on the reservation.

Finally, in the summer of 1997, A.P. was placed with his fifth and, thus far, last placement. A.P.'s present placement is with an Indian custodian and her husband who reside in Great Falls. The Indian custodian intervened in these proceedings in October 1997. The Indian custodian is a member of the Turtle Mountain Band of the Chippewa Tribe, and she has contacted the Tribes to attempt to enroll A.P. in his Tribe. The Indian custodian testified in District Court that, as an Indian, she understands the need for A.P. to be raised to appreciate his affiliation with the Gros Ventre Tribe and she has testified that she will maintain ties with the Fort Belknap Reservation and raise A.P. to understand the culture of the Tribes of which he is a part. A.P. remains with this family in Great Falls. It appears that they are providing a secure and loving home for him and that he is thriving.

The instant appeal is from the District Court's denial of the Tribes' July 7, 1997 motion to transfer which was followed by a jurisdictional hearing held over three days on October 14, October 30 and November 13, 1997. In summary, 25 U.S.C. 1911(b) of the ICWA allows the tribe of an Indian child to move to transfer state court foster care placement and parental rights termination proceedings to tribal court. This statute provides that the tribal court is the preferred forum, but allows a state court to refuse to transfer based on a showing that good cause exists not to transfer, based upon objection by either parent or based upon declination by the tribal court.

In the case at bar, the District Court found that it was not in A.P.'s best interests to transfer his case. The court concluded that 1911(b) did not apply as there was no state court proceeding when the Tribes' transfer motion was filed; because the Tribes' transfer motion was not filed during a foster care placement of or termination of parental rights proceeding; and because this section is not applicable to a preadoptive placement proceeding. From the District Court's denial of the Tribes' motion to transfer, this appeal followed.

Issues

The issues on appeal, as framed by the State, are as follows:

1. Did the District Court correctly conclude that 25 U.S.C. 1911(b) of the ICWA does not provide for transfer to tribal court of a state administrative preadoptive placement occurring after state court proceedings had closed and parental rights had terminated?

2. If 25 U.S.C. 1911(b) of the ICWA is applicable, did the court correctly conclude that good cause existed not to transfer jurisdiction because the proceedings, having commenced two years earlier and having closed one month prior to the motion to transfer, were at an advanced stage?

3. Did the District Court correctly apply this Court's rule in In the Matter of T.S. (1990), 245 Mont. 242, 801 P.2d 77, and In the Matter of M.E.M. (1984), 209 Mont. 192, 679 P.2d 1241, in considering the best interests of the child as modified by the considerations listed in the Bureau of Indian Affairs Guidelines, to find that it was not in the child's best interests to transfer?

Since our discussion of Issue 1 is dispositive, we decline to address Issues 2 or 3.

Standard of Review

The issues raised in this case involve questions of law. We review a district court's conclusions of law simply to determine whether the court's interpretation of the law is correct. Adoption of Riffle (1996), 277 Mont. 388, 391, 922 P.2d 510, 512 (Riffle II).

Discussion

For purposes of our discussion, it is important to bear in mind that the progression of A.P.'s case involved different state court proceedings, each with its own statutory requirements. With its September 1995 petition for TIA, DPHHS proceeded under 41-3-404, MCA, and obtained temporary custody in April 1996. The agency then proceeded under 41-3-601 to -612, MCA, for termination of parental rights and for permanent custody. On June 5, 1997, the court reviewed DPHHS permanency plan for A.P., closed the final case petition for permanent custody, and approved DPHHS to proceed with adoption and preadoptive placements. Following this order, the agency placed A.P. in a preadoptive placement with his present Indian custodian and her husband.

These distinctions are important in our determination of whether the requirements of the ICWA have been met as regards the particular state court proceedings at issue. See M.E.M., 209 Mont. 192, 679 P.2d 1241; Riffle II, 277 Mont. 388, 922 P.2d 510.

In relevant part, 25 U.S.C. 1911, provides:

(b) Transfer of proceedings; declination by tribal court

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

As can be seen from the plain language of this statute, state court proceedings are required to be transferred to tribal jurisdiction where "foster care placement" or "termination of parental rights" is the matter at issue. As noted by the Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29:

At the heart of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings. Section 1911 lays out a dual jurisdictional scheme. . . . Section 1911(b) . . . creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state-court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of "good cause," objection by either parent, or declination of jurisdiction by the tribal court.

Holyfield, 490 U.S. at 36 (emphasis added).

Foster care placement is defined in 25 U.S.C. 1903(1)

      1. and involves temporary placement of the child "but where parental rights have not been terminated." Section 1903(1)
      2. defines termination of parental rights as "any action resulting in the termination of the parent-child relationship." Accordingly, under 1911(b), the ICWA provides only for transfer of state court proceedings prior to termination of parental rights.

. By the time the Tribes first appeared and moved to transfer, A.P.'s case had progressed to the point where his parents' rights had been terminated and to the point where custody had been permanently placed with DPHHS with approval for preadoptive placements and adoption. In fact, state court proceedings had terminated altogether before the Tribes' motion was filed. Accordingly, we conclude that the District Court correctly determined that 1911(b) did not apply to the Tribes' transfer motion because, at the time it was filed, there was no ongoing state court proceeding for foster care placement or termination of parental rights.

Rather, what was extant at the time the Tribes' motion to transfer was filed was A.P.'s preadoptive placement with the Indian custodian and her husband. Section 1903(1)(iii) defines "preadoptive placement" as "the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement. [Emphasis added.]" The District Court concluded that 1911(b) does not apply to preadoptive placement proceedings. We agree.

. The Tribes argue that we should disregard the plain language of 1911(b), and, because 1911(c) empowers a tribe to intervene "at any point in the proceedings," that we should allow the motion to transfer despite the fact that the foster care placement proceedings and termination of parental rights proceedings were completed prior to the motion being filed. We decline to do so.

We have stated that a tribe's right to intervene in a proceeding is not impaired if it does not intervene promptly after receiving notice. Riffle I, 273 Mont. at 241, 902 P.2d at 544. However, timeliness aside, the Tribes' argument fails to recognize the fundamental difference between transferring a case to an entirely different court system, on the one hand, and granting participation by way of intervention in ongoing proceedings in the state court that already has had a substantial and lengthy involvement in various aspects of the case, on the other. As discussed in the BIA guidelines at 44 Fed. Reg. 67590 (1979):

This section specifies that requests are to be made promptly after receiving notice of the proceeding. . . . While the Act permits intervention at any point in the proceeding, it does not explicitly authorize transfer requests at any time. Late interventions do not have nearly the disruptive effect on the proceeding that last minute transfers do. A case that is almost completed does not need to be retried when intervention is permitted. . . . Although the Act does not explicitly require transfer petitions to be timely, it does authorize the court to refuse to transfer a case for good cause. When a party who could have petitioned earlier waits until the case is almost complete to ask that it be transferred to another court and retried, good cause exists to deny the request.

See also People in Interest of J.J. and S.J. (S.D.1990), 454 N.W.2d 317 (tribal motion to intervene in an extant proceeding was granted; but appropriate, though untimely, 1911(b) motion to transfer was denied because, citing the BIA guidelines, intervention is far different than transfer and would subject children to potentially dangerous situations and not be in their best interest).

Here, as to the foster care placements and termination of parental rights, A.P.'s case was not "almost completed," but, rather, these proceedings had been completed and closed for a month when the Tribes' transfer motion was filed. Even if 1911(b) allowed transfer at that point in time (which it does not), the disruptive effect of transfer to an entirely new court system for more litigation and possible retrial is manifest and is hardly in the best interest of the parents or the child.

We conclude that the District Court properly denied the Tribes' 1911(b) transfer motion inasmuch as it was filed at a time when there was no foster care placement nor termination of parental rights proceedings before the court, those proceedings having been completed. Moreover, we conclude that, in the context of a preadoptive placement following the termination of parental rights, the court properly determined that 1911(b) is inapplicable. Accordingly, we hold that the District Court's denial of the Tribes' motion to transfer jurisdiction of A.P.'s case to Tribal Court was correct as a matter of law.

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___________________________________________________________________________

IN THE SUPREME COURT OF THE STATE OF MONTANA

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No. 97-262, 1998 MT 175

Decided: July 16, 1998

IN THE MATTER OF THE ADOPTION OF H.M.O.

(Qualified Expert Witnesses)

ISSUES

3 1. Did the District Court err by applying a retroactive child support obligation to the one-year period prior to the filing of the petition for adoption for purposes of granting the petition without Barbara's consent?

4 2. Does 40-8-111(1)(a)(v), MCA (1995), allow for a de minimis exception to the rule that a parent's consent to adoption is not required when a parent, although able to do so, fails to pay child support for the year preceding the petition for adoption?

5 3. Did the District Court err under the Indian Child Welfare Act by granting the petition for adoption absent supporting testimony from a qualified expert witness?

6 4. Does sufficient evidence support the District Court's finding that Barbara's continued joint custody likely would result in serious emotional or physical damage to H.M.O.?

Because our resolution of issue 3 is dispositive, we do not address Barbara's other issues.

BACKGROUND

7 Barbara married Randy R. (Randy) in November of 1990. They separated after six months and H.M.O. was born five and one-half months later. Sometime after H.M.O.'s birth, Randy requested a paternity test which established that he was H.M.O.'s father. Barbara and Randy's marriage was dissolved in Cascade County on July 21, 1993. They were awarded joint legal custody of H.M.O., with Barbara designated as the physical custodian. Randy was awarded reasonable visitation rights. Child support was determined and Randy paid regularly until he took physical custody of H.M.O. on April 15, 1994.

8 On that date, Heidi--Barbara's teenage daughter from a previous marriage--called her stepmother, Karen, and asked to be picked up from softball practice. She told Karen that she was tired of Barbara's drinking and of being H.M.O.'s care giver and wanted to stay with her father and Karen. Karen then called Shannen, Randy's live-in girlfriend, reported that Barbara was drinking again and suggested that Shannen pick up H.M.O. because she might be left unsupervised. Shannen contacted Randy, who called the Great Falls Police Department. Officer Christopher Paul Hickman (Officer Hickman) responded and met Shannen and Karen at Barbara's apartment. Barbara's babysitter arrived with H.M.O., called Barbara, and let everyone into Barbara's apartment. Officer Hickman told Karen and Shannen that it was better if Heidi and H.M.O. went to stay with their respective fathers, since both fathers had joint custody of their daughters.

9 Barbara did not return to her apartment and Officer Hickman tracked her down at a house party. He observed that she was highly intoxicated, and informed her that her daughters were with their fathers. Barbara responded that now maybe she could get a life.

10 Barbara and Randy entered into a stipulation on May 9, 1994, which gave Randy residential custody of H.M.O. with reasonable visitation rights in Barbara. The Cascade County district court adopted the stipulation by order the following day and placed restrictions on Barbara's visitation, including that she could not drink in H.M.O.'s presence and could not have overnight visitation until her continued abstinence from alcohol had been proven to the court. In addition, Randy's child support obligation was retroactively terminated as of April 15, 1994. Finally, the district court ordered that Barbara's support obligation be determined.

11 Barbara attempted to contact H.M.O. several times during the subsequent two and one-half years. Each time, Randy and Shannen denied Barbara any contact with H.M.O.

.13 By the time the adoption petition was filed, Barbara had completed inpatient chemical dependency treatment in Butte and moved to Missoula, where she enrolled in outpatient treatment at the Missoula Indian Center. Barbara is an enrolled member of the Chippewa-Cree Tribe (Tribe) of the Rocky Boy Reservation. Neither H.M.O. nor Heidi is enrolled. In June of 1995, Heidi went to stay with Barbara in Missoula for the summer and decided to stay with her while attending high school.

. 17At the beginning of the hearing on Shannen's petition, the District Court concluded that H.M.O. would be treated as an Indian child for purposes of the Indian Child Welfare Act (the ICWA) and, therefore, that the ICWA applied to the adoption proceedings. It further noted that the Tribe was notified of the adoption proceedings, as required by the ICWA, but did not respond. Shannen, Randy, Barbara, and various friends and family members testified. In addition, Carol Richard (Richard), a chemical dependency counselor, testified on Barbara's behalf. Shannen's accounting expert also testified that, if Barbara's support obligation had been determined, she would have owed $43 per month in child support to Randy.

DISCUSSION

.21 Did the District Court err under the ICWA by granting the petition for adoption absent supporting testimony from a qualified expert witness?

22 At the beginning of the hearing, the District Court determined that H.M.O. would be treated as an Indian child and, therefore, that the ICWA applied to the proceedings; neither party appealed from that determination. The District Court subsequently concluded that Jackman's report, McCracken's deposition, and Richard's opinion testimony constituted the qualified expert evidence required by the ICWA to support its finding, beyond a reasonable doubt, that Barbara's continued custody of H.M.O. would likely result in serious emotional or physical damage to H.M.O. On that basis, the District Court ordered Barbara's parental rights terminated and granted Shannen's petition for adoption.

23 Barbara argues that, under the ICWA, her parental rights cannot be terminated absent testimony from at least one qualified expert witness that serious emotional or physical damage to H.M.O. likely will occur if Barbara's joint custody is continued. She contends that the District Court's "serious emotional or physical damage" determination is not supported by qualified expert testimony.

24 As a threshold matter, Shannen contends that this issue is not properly before us because Barbara raises it for the first time on appeal. Barbara responds that the first notice she had that Jackman and McCracken were to be treated as experts for ICWA purposes was when the District Court entered its findings of fact, conclusions of law, and order.

25 We generally will not address an issue raised for the first time on appeal when the appellant had an opportunity to object at the trial level. Cenex v. Board of Com'rs of Yellowstone (1997), 283 Mont. 330, 337-38, 941 P.2d 964, 968 (citation omitted); State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491 (citation omitted). In cases where the party has not had an adequate opportunity to object, however, we will address the issue. See Cenex, 283 Mont. at 338, 941 P.2d at 968. For the reasons set forth below, we conclude that Barbara did not have an adequate opportunity to object to the District Court's reliance on Jackman and McCracken as expert witnesses. Therefore, this issue is properly before us.

26 The ICWA provides that: [n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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.

.28 Similarly, Shannen did not offer--or qualify--McCracken, who is Shannen's mother, as an expert witness. Like Jackman, McCracken did not testify in person during the hearing. Her testimony was admitted via her perpetuation deposition and there is no suggestion therein that she was being offered as an expert witness. While McCracken's deposition reflects that she is a school teacher with an elementary education degree and an endorsement in special education, we conclude that such information set forth in a vacuum--that is, without any disclosure that the witness is being offered and qualified as an expert--cannot constitute an adequate foundation. Therefore, we conclude that the District Court abused its discretion by implicitly determining that an adequate foundation had been laid for receipt of McCracken's deposition testimony as expert evidence.

29 Shannen contends, however, that Jackman, McCracken and Richard were, in fact, qualified expert witnesses for ICWA purposes and that their testimony supported the District Court's finding, beyond a reasonable doubt, that Barbara's continued joint custody of H.M.O. would likely result in serious emotional or physical damage to the child. We address these matters in turn.

30 Where the ICWA applies, the Guidelines for State Courts; Indian Child Custody Proceedings (the Guidelines), regarding expert witnesses for ICWA purposes, also apply. Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318. The Guidelines provide:

D.4. Qualified Expert Witnesses

        1. Removal of an Indian child from his or her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the parents or Indian custodian is likely to result in serious physical or emotional damage to the child.
        2. Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:
          1. A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childbearing practices.
          2. A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childbearing practices within the Indian child's tribe.
          3. A professional person having substantial education and experience in the area of his or her specialty. 44 Fed.Reg. 67584, 67593 (1979).

31 Nothing of record suggests in any way that Jackman, McCracken or Richard could be qualified as experts for ICWA purposes under the first two categories set out above. Thus, they could qualify--if at all--only under the third category.

32 Shannen contends that, because Jackman is a social worker, the District Court did not err in relying on the expert opinions set forth in her home-study report. For this proposition, Shannen relies on In re Adoption of M.T.S. (Minn. Ct. App. 1992), 489 N.W.2d 285, 287. However, Adoption of M.T.S. provides little support for Shannen's argument because, beyond a statement that the social workers who provided the home-study reports were qualified experts under the ICWA, the opinion provides no information on the expertise of the social workers. Adoption of M.T.S., 489 N.W.2d at 287. In short, whether the social workers were qualified experts under the ICWA was not an issue. Adoption of M.T.S., 489 N.W.2d at 287.

33 Other courts have held that social workers must have qualifications beyond those of the normal social worker to be qualified as experts for the purposes of the ICWA. See, e.g., In re Elliott (Mich. Ct. App. 1996), 554 N.W.2d 32, 37 (citation omitted); Matter of N.L. (Okla. 1988), 754 P.2d 863, 868 (citations omitted). Those courts based their conclusions on the legislative history of the ICWA which requires "expertise beyond the normal social worker qualifications." See In re Elliott, 554 N.W.2d at 37 (citation omitted); Matter of N.L., 754 P.2d at 868 (citations omitted); see also House Report for the Indian Child Welfare Act, H.R. 1386, 95 Cong., 2d Sess. 22, reprinted in 1978 U.S.C.C.A.N. 7530, 7545. Based on these cases and legislative history, we hold that a social worker must possess expertise beyond that of the normal social worker to satisfy the qualified expert witness requirement of 25 U.S.C. 1912(f).

.38 As discussed, Richard's testimony was the only expert evidence before the District Court on the likelihood of serious emotional or physical damage to H.M.O. in the event Barbara retained joint custody. That testimony is not substantial evidence in support of the District Court's finding, beyond a reasonable doubt, that continued joint custody by Barbara would result in serious physical or emotional damage to H.M.O. We conclude, therefore, that the court's finding is clearly erroneous and, as a result, we hold that the District Court erred in granting the petition for adoption absent substantial supporting testimony from a qualified expert witness.

39 Reversed and remanded with instructions to the District Court to vacate its judgment and enter a judgment reinstating Barbara's parental rights and denying Shannen's petition for adoption.

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Prayer Effort


IN THE SUPREME COURT OF THE STATE OF MONTANA

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No. 98-456, June 3, 1999

IN RE THE MATTER OF K.H. and K.L.E., Youths in Need of Care.

Brief only

STATEMENT OF THE ISSUES

1. In an Indian Child Welfare Act case, may a party challenge an

expert's qualifications on appeal when the party had adequate opportunity to

object but did not make a timely objection?

2. Is there substantial evidence supporting termination of parental rights

including evidence, beyond a reasonable doubt, that T.H. would suffer physical

and emotional damage if Appellant's (Tamara's) parental rights were not

terminated?

STATEMENT OF THE CASE

In September 1996 the Montana Department of Public Health and Human Services (DPHHS) petitioned for temporary investigative authority of K.H. and K.L.E. The petition was brought due to concerns regarding the mother's (Tamara's) drug use, including during her pregnancies with the children. (D.C. Dots. 1,3.)

Tamara did not object to DPHHS obtaining investigative authority and she entered into a voluntary treatment plan. (D.C. Dots. 6, 8.) In December 1996, DPPHS petitioned for temporary custody. Tamara did not object to DPHHS obtaining temporary custody. (D.C. Dots. 12, 18,20.)

Following successive treatment plans, DPHHS petitioned for and obtained an extension of its temporary custody. (D.C. Dots. 22-23,26,32,34.) In December 1997, DPHHS petitioned for permanent custody and termination of Tamara's parental rights, citing noncompliance with the treatment plans. (DC. Dots. 35, 37.)

The Crow Tribe, which was given notice of the proceedings, intervened. (D.C. Dots. 4,27,29, 38.) Parental rights to K.L.E. are not at issue because jurisdiction of her case was transferred to the Crow Tribe. (D.C. Dot. 58, Find. 4.) Following a March 1998 hearing, the court terminated Tamara's parental rights to K.H. (DC. Dot. 58, Concl. 6.) Tamara filed a timely notice of appeal. (D.C. Dot. 62.)

STATEMENT OF THE FACTS

K.H. is a boy who was born in September 1995. DPHHS's initial involvement with the children began in September 1996, when K.L.E. was born.' DPKHS reported that Appellant (Tamara) admitted to the use of alcohol, marijuana, and cocaine. Tamara used during her pregnancies. (DC. Dot. 3.) As mentioned, above, the Crow Tribe has jurisdiction of K.L.E., a girl,

who was born in September 1996.

Tamara did not object to DPHHS obtaining investigative authority. (D.C. Dots. 6, 18.) After entering into a voluntary treatment plan in October 1996, DPHHS reported that Tamara admitted having relapsed into alcohol, marijuana, and cocaine use. (D.C. Dots. 8, 14 at 3.) Tamara also reported that she was depressed and suicidal. Consequently, in an attempt to alleviate Tamara's depression, DPHHS placed Tamara in foster care with the children. Tamara left the placement the next day. (D.C. Dot. 14 at 3-4; Tr. at 10-I 1.) In late October 1996, Tamara was discharged from the aftercare portion of chemical dependency treatment due to substance abuse relapses. (D.C. Dot. 14 at 4.) Tamara did not object to DPHHS obtaining temporary custody. (D.C. Dot. 18.)

In January 1997 ,Tamara entered into another voluntary treatment plan. (D.C. Dot. 17.) She entered into subsequent plans covering the period through July 1997. (D.C. Dots. 22,23.) In July 1997, DPHHS petitioned the court to extend its temporary custody, citing Tamara's failure to successfully complete her treatment plans. (D.C. Dots. 25-26.) "After brief testimony and no objections, the extension was granted." (D.C. Dot. 34.) Tamara was represented by counsel at

the hearing.

In December 1997, DPHHS petitioned for permanent custody and termination of Tamara's parental rights. (D.C. Dot. 35.) DPHHS's report to the court included, without limitation, the following information: (1) in January 1997, Tamara was arrested for shoplifting and criminal sale of dangerous drugs; (2) in April 1997, Tamara received a positive urinalysis for, and admitted using, cocaine; (3) in April 1997, Tamara was evicted from her apartment and stated she could not care for the children; (4) in June 1997, Tamara was arrested for probation

violations and sentenced to three years with the Department of Corrections and placed in the Butte Prerelease Center; (5) in September 1997, Tamara was discharged from the Montana Chemical Dependency Center for lack of progress in the program; (6) in October 1997, Tamara was transferred to the Women's Prison in Billings; and (7) Tamara did not comply with several requirements of her treatment plans, including the requirements that she address her chemical dependency problem and refrain from criminal activities. (D.C. Dot. 37 at 6-13; Tr. at 20-2 1.)

I. THE SOCIAL WORKER'S TESTIMONY AND OPINIONS WERE RECEIVED WITHOUT OBJECTION.

A hearing on DPHHS's petition to terminate Tamara's parental rights was held on March 11, 1998. Lori Hicks was the only expert witness called by DPHHS. Hicks is a social worker with a bachelor's degree in health and human development. She has completed approximately one-half of her course work toward a masters degree in counseling. Hicks testified that her work involves "daily" contact with Native Americans. (Tr. at 2-4.)

Tamara is Native American. The applicability of the Indian Child Welfare Act was not in dispute. (Tr. at 4-S.) Tamara, who was represented by counsel at the hearing, did not object to Ms. Hicks' qualifications as an expert. Hicks testified that Tamara is 24 years old, unemployed, and she has never supported K.H. financially. K.H. has been in foster care since September 1996. Hicks testified that Tamara repeatedly admitted to alcohol and drug abuse, including use of cocaine. She used during her pregnancies. (Tr. at 5-9, lo- 11.) In October 1996, Tamara reported that she had been beaten up by her mother. She had thoughts of suicide and was admitted to the Deaconess Psychiatric Center. (Tr. at 10-l 1.) Hicks also testified that Tamara was very emotional during her visits with the children. During visitation, Tamara would cry very loudly. The children were very confused and often they would start crying as well. (Tr. at 12,22.)

Tracy (K.H.'s father) testified that when K.H. returns from prison visits with Tamara he is distraught, tearful, and dazed. (Tr. at 98.) On the other hand, Hicks testified that K.H. was doing well in his placement with his father (Tracy), who has complied with his treatment plans. (Tr. at 23-24.) In January 1997, Tamara admitted to drinking alcohol and smoking pot on New Year's eve. In January she was also arrested for shoplifting and on a warrant for criminal sale of dangerous drugs. According to Hicks, Tamara again stated that she wanted to relinquish parental rights and that she could not care for both of the children. (Tr. at 14-15.) Tamara introduced Hicks to a couple who she wanted to adopt K.L.E. The couple expected to take K.L.E. that day. When Hicks explained the requirements of the formal adoption process, the couple left. They were never heard from again. (Tr. at 15-I 6.) Tamara also proposed that her older sister could care for the children. Tamara's sister, however, already had children of her own in foster care. (Tr. at 17-18.)

In March 1997, Tamara arrived at her scheduled visit smelling of alcohol. According to Hicks, Tamara said she spilled beer on her coat. However, when given the opportunity, Tamara declined to take a BAC to prove she had not been drinking. (Tr. at 16-17.)

On more than one occasion, Tamara said she wanted to relinquish parental rights. (Tr. at 18-20.) She missed scheduled visits with the children. (Tr. at 16, 19-20.) Hicks testified that Tamara had not successfully completed any of the tasks on any of her treatment plans. According to Hicks, Tamara also was not doing well during her incarceration, that she would likely not be paroled until 1999, and T.H. needs stability now. According to Hicks, Tamara has "never demonstrated that she could parent her children without the use of chemicals - drugs or chemicals while out of a secure environment." (Tr. at 27.) Hicks testified that Tamara never expressed a plan for resuming care of K.H. (Tr. at 28.) Hicks described some of her efforts to assist Tamara in complying with her treatment plan:

I met with Tamara each week. I talked to her about what she was doing. I provided her counseling. I provided her urinalysis testing. I called the mental health center to get her involved with an outpatient program there. I sent her to the Indian Health Board to do an evaluation there to get her into treatment. I provided her rides. I provided her a bus pass. I provided her referrals to Better Babies, a list of alcoholics anonymous meetings, several different referrals to help her. (Tr. at 28.)

Hicks testified, without objection, that T.H. especially needs a stable, secure environment because he has neurological delays. He has experienced delays in speech, as well as cognitively, socially and behaviorally. (Tr. at 4 1.) Again, without objection, Hicks testified that continued custody of K.H. by Tamara would likely result in "serious emotional damage" to K.H. Hicks explained that during "every" visitation, Tamara does not relate to K.H. and he "does not understand what's going on." (Tr. at 29.) His emotional state deteriorates after visitation. (Tr. at 36.)

II. TAMARA'S TESTIMONY

Tamara explained her transfer to the Women's Prison from prerelease by stating, "There's a lot of things going on in me that I have to deal with." (Tr. at 46.) She conceded that she was discharged from prerelease for lack of progress. (Tr. at 72.) She received a Class II write up for providing cigarettes to an individual with whom she was required to refrain from contact. (Tr. at 77.) She admitted that she cannot take care of both K.H. and K.L.E. and she does not know where she would live when she is released from prison. She testified that Tracy would be a better caretaker for K.H. (Tr. at 5 l-52.) Tamara testified that she used daily during both pregnancies and that, as a consequence, both children have "fetal alcohol effect." (Tr. at 59-60.) Her drug of choice is cocaine. She continued using even after the children were removed from her care and placed into foster care. (Tr. at 62-64.) She conceded that she missed visits because she was drunk. (Tr. at 64.)

Tamara has been homeless off and on throughout her life. She has been suicidal. She has never been employed; she worked one job for "about a couple of days" and another for a week. She has sold her body, gambled, and sold drugs to support her habit. (Tr. at 65-69.) Before going to prison, she attended AA only once or twice. She still does not have an AA sponsor. She did not take parenting classes before her incarceration. Following her DOC commitment and subsequent incarceration, she did not begin parenting classes until January 1998. Since her incarceration, Tamara conceded that she has been on the verge of noncompliance for missing meetings and classes. She has skipped meetings when she is unable to "compose" herself emotionally. (Tr. at 82.) Because she was sentenced to three years with the Department of Corrections, she may not get out until 2000. (Tr. at 89.) She has had one write up per month during her imprisonment. (Tr. at 9 1.)

Judge Colberg found clear and convincing evidence that T.H. would be subjected to serious emotional endangerment if parental rights were not terminated. (DC. Dot. 58.)

I. ARGUMENT

SUMMARY OF ARGUMENT

The primary issue raised on appeal is whether Judge Colberg erred by allowing social worker Hicks to testify as an ICWA expert when no objection to the witness's qualifications was made at the termination hearing. The standard for reviewing a trial court's decision to admit testimony is abuse of discretion. It was well within the court's discretion to determine that Hicks' testimony was helpful to the court as trier of fact. Tamara clearly had the opportunity to object to Hicks' qualifications, but no objection was made. Consequently, this Court should hold that the court did not abuse its discretion by considering testimony to which no timely objection was made.

Tamara also contends that the record evidence does not support termination of parental rights under the ICWA and under Montana law. To the contrary, the record evidence is convincing that Tamara has a destructive, intractable addiction to alcohol and drugs. She has failed her treatment objectives. Moreover, the record evidence does not support Tamara's assertion that she is doing well in prison. During her incarceration, Tamara has missed classes and meetings, she still does not have an AA sponsor, she has failed moral recognition therapy and she has been written up at a rate of once per month.

Finally, Tamara may not be released until 2000 and her history of addiction and noncompliance indicates that, when released, she will not be a rehabilitated parent or citizen. T.H. has been in foster care since September 1996, he is doing well with his father, and his best interests require permanency. Therefore, Judge Colberg's order terminating Tamara's parental rights should be affirmed.

.III. APPLICABLE LAW

By statute, a parent-child relationship may be terminated if: (1) the child

has been abandoned or is an adjudicated youth in need of care; (2) the court approved treatment plan has not been complied with or has been unsuccessful; and (3) the parent's unfitness is unlikely to change in a reasonable time. Mont. Code Ann. $ 41-3-609(1)(b), (e)(i), (ii).' The petition for termination was filed in December 1997. (D.C. Dot. 35.) Consequently, all citations herein are to the 1997 code provisions.

In determining whether a parent's conduct or condition is likely to change within a reasonable time the court must "give primary consideration to the physical, mental, and emotional conditions and needs of the child." Mont. Code Ann. 5 41-3-609(3).

Finally, the Indian Child Welfare Act (ICWA) provides that: [n]o termination of parental rights may be ordered . . . in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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 USC. 4 1912(f). See also Matter of H.M.O., 1998 M T 175 126,55 State

Rptr. 710, 712.

IV. THE ISSUE OF HICKS' QUALIFICATIONS AS AN EXPERT UNDER THE ICWA WAS WAIVED BY TAMARA'S FAILURE TO OBJECT TO HICKS' QUALIFICATIONS AND OPINIONS.

Tamara argues that social worker Hicks was not a qualified expert for purposes of the ICWA and that, therefore, the lower court's order terminating her parental rights should be overturned. (Appellant's Br. at l-4.) Tamara places primary reliance upon this Court's recent decision in Matter of Adontion of H.M.O., 1998 MT 175,55 State Rptr. 710.

Montana Rule of Evidence 103, requires "a timely objection or motion to strike. . ., stating the specific ground of the objection." In Matter of Adoption of H.M.0, 1998 MT 175,a 25, 55 State Rptr. 710,712, this Court adhered to the rule that to preserve an issue for appeal the appellant must, ordinarily, object to the evidence at the trial or hearing. This Court considered the issue of the social worker's qualifications only because the appellant had been denied an adequate opportunity to object at trial. The testimony at issue in Matter of Adoption of H.M.O. involved individuals who never testified and whose opinions were contained in reports which were received into evidence. No foundation for expert testimony was even laid. Matter of Adoption of H.M.O., 1998 MT 175,n 27,55 State Rptr. 710, 712-13.

Here, the applicability of the ICWA was never in dispute. The tribe intervened in the suit and Tamara was afforded counsel to represent her. No objection was made to Hicks' qualifications and Hicks was not subjected to voir dire regarding her qualifications. Hicks' opinions, including her opinion that T.H. was seriously endangered, were received without objection. When Tamara's proposed findings of fact were filed, which in part questioned Hicks' qualifications, the time to object to Hicks' qualifications had long since expired.

V. THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT THE CONCLUSION, BEYOND A REASONABLE DOUBT, THAT CONTINUATION OF THE PARENT-CHILD RELATIONSHIP _~ WOULD RESULT IN SERIOUS EMOTIONAL OR PHYSICAL

DAMAGE TO THE CHILD.

As discussed above, the standard of proof in ICWA cases is beyond a reasonable doubt. The district court correctly apprehended the standard, concluding that the "evidence established beyond any doubt in a clear and convincing fashion that the continued custody by the mother" would result "in serious emotional and physical damage to this child." (D.C. Dot. 58, Concl. 3.)

The evidence establishes that Tamara has a long-term, intractable addiction to alcohol and drugs including a history of daily, intravenous cocaine use. This problem has resulted in prostitution, being beaten and kidnaped, neurological damage to the children, suicidal thoughts, criminal sale of drugs, and probation violations which have landed Tamara in prison. Since her incarceration she admits to missing classes and meetings due to her emotional lability. She has received one write up per month. Her release date is uncertain and despite her incarceration and numerous treatment efforts she has failed "moral recognition" therapy. The record evidence substantially supports the conclusion reached by Judge Colberg.

Tamara argues that she is satisfied with T.H.'s placement with his father and that she only wants visitation. She contends that visitation will not seriously damage T.H. (Appellant's Br. at 4-5.) Tamara ignores the record evidence that her visits with T.H. have already proven to be disruptive, confusing, and harmful to the child. Regardless of her willingness to stipulate to Tracy as primary custodian, absent termination of her rights, Tamara would be entitled to substantial and continuing contact with T.H. She would remain T.H.'s parent and, in the event Tracy were unable to act as primary custodian, Tamara would be the likely candidate to resume primary custody of the child. Tamara's unresolved problems would likely negatively impact T.H. if she were allowed physical contact with him, whether the legal pretext for that contact is visitation or custody. Judge Colberg's conclusion that T.H. was seriously endangered, beyond a

reasonable doubt, has substantial evidentiaty support.

VI. THE STATUTORY CRITERIA FOR TERMINATION OF PARENTAL RIGHTS WERE MET.

.CONCLUSION

The record evidence establishes clearly, convincingly, and beyond a reasonable doubt that T.H.'s best interests require termination of Tamara's parental rights. It is equally clear that any objection to Hicks' testimony was waived and Judge Colberg's consideration of that testimony was not an abuse of discretion. For the foregoing reasons, this Court should affirm the lower court's decision to terminate Tamara's parental rights to T.H.

Respectfully submitted this 18th day of December, 1998.

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IN THE SUPREME COURT OF THE STATE OF MONTANA

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No. 97-524, 1999 MT 142N

Decided: June 15, 1999


IN RE T.A.G., A Youth in Need of Care.

(Successful Good Cause)


Justice Terry N. Trieweiler delivered the opinion of the Court.

1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number, and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court.

2. The Hill County Attorney filed a petition on behalf of the Department of Public Health and Human Services in the District Court for the Twelfth Judicial District, Hill County, to terminate the parental rights of the mother of T.A.G. The District Court granted the petition, ordered that the mother's parental rights were terminated effective immediately, and gave the Department of Public Health and Human Services permanent legal custody of T.A.G. with the right to consent to her adoption. The mother appeals the District Court order. We affirm the judgment of the District Court.

3. The following issues are presented on appeal:

4. 1. Did the District Court err when it found that evidence that T.A.G. was enrolled or eligible for enrollment in the Fort Belknap Tribes was inconclusive?

5. 2. Did the District Court err when it denied the mother's motion to continue?

6. 3. Was the mother's counsel ineffective because he did not object to the State's failure to notify the Tribe of the termination proceeding as mandated by 25 U.S.C. 1911(b), because he failed to petition the court to transfer jurisdiction to the Tribal Court, and because he did not raise the issue of the State's compliance with the Americans with Disabilities Act?

7. 4. Did the District Court err when it found that the requirements of 41-3-609(1)(e)(i) and (2)(a), MCA, had been satisfied?

FACTUAL BACKGROUND

8. T.A.G. was born May 6, 1994 with a rare inherited metabolic disorder, phenylketonuria, commonly referred to as PKU. ... As the child grows older, teachers, friends and any other people the child comes into contact with must also be educated about PKU and the necessity of protecting the child from natural foods. When combined with the normal rigors of child-rearing, a tremendous amount of organization and discipline is required.

9. T.A.G.'s mother has a chronic organic brain disorder as a result of a craniotomy to remove a fibrocystic tumor in her brain when she was thirteen. As a result of her disability, she has memory problems, problems with recall and with processing information, difficulty organizing her thoughts, and a low tolerance to stress. Everyday living is a difficult task for the mother. She has difficulty keeping appointments and staying on schedules. T.A.G.'s father formally relinquished his parental rights because of disabilities caused by a motorcycle accident.

10. In September 1995, the Department of Public Health and Human Services received a referral regarding the mother and T.A.G. They were at the Women's and Family Shelter in Billings, and the mother was having trouble fixing a bottle. There were concerns that the mother was not providing adequate care for T.A.G. Apparently the mother planned to return to Havre where she resided, but lost the money for the bus ticket. T.A.G. was placed in a foster home, and a maternal aunt picked T.A.G. up from the foster home. A paternal uncle and aunt then took T.A.G. to live with them, and she has remained with them since that time treatment plan, which the court then imposed. The court ordered that temporary custody of T.A.G. be continued with the aunt and uncle who live in Shelby.

.12. The treatment plan required that the mother continue to work with the dietician that she had been working with since the birth of T.A.G. The plan was designed to help the mother with her meal planning skills, and with T.A.G.'s strict dietary requirements. She was required to develop meal plans and attend parenting classes. Visitation times were then arranged during which the mother was required to keep a list of foods she fed to T.A.G.

13. On March 21, 1997, the Hill County Attorney, on behalf of the Department, filed a petition to terminate parental rights. Based upon all of the evidence presented at trial, the District Court found that the mother's condition, "without fault on her part," prevented her from providing the necessary care for T.A.G. Therefore, the court ordered that the parental rights of the mother and father, who had previously relinquished his.

ISSUE 1

17. Did the District Court err when it found that evidence that T.A.G. was enrolled or eligible for enrollment in the Fort Belknap Tribes was inconclusive?

18. The threshold inquiry in this case is whether T.A.G. is an "Indian child" within the meaning of the Indian Child Welfare Act (ICWA) of 1978, 25 U.S.C. 1900-1934. "Indian Child" is defined as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C.A. 1903(4). Tribes have the power to determine tribal membership unless otherwise limited by statute or treaty. See Adams v. Morton (9th Cir. 1978) 581 F.2d 1314. Moreover, for ICWA determination purposes, tribes have ultimate authority to decide who qualifies as an "Indian child." See In re Adoption of Riffle (1995), 273 Mont. 237, 242, 902 P.2d 542, 545 (discussing Department of Interior Guidelines promulgated to aid state courts in ICWA cases).

19. In its order terminating parental rights, the District Court found that the evidence in the record was inconclusive as to whether T.A.G. was enrolled or eligible for enrollment in an Indian Tribe. At the commencement of the action, which was originally filed in Yellowstone County, the Tribes of the Fort Belknap Reservation were sent notices of the pending action. With the consent of both courts and all of the parties, the case was then transferred to the Hill County District Court because the mother resided in Havre. Notice of the action was again sent to the Fort Belknap Tribes. The Tribes did not intervene or respond in any way to the notices. Without the Tribes' intervention or response, T.A.G.'s status as an Indian child could not be established.

20. At the hearing on the motion to terminate parental rights, which was held on June 10, 1997, counsel for the mother, when questioned by the court, stated that T.A.G. was not an enrolled Tribal member at that time. The mother then testified that T.A.G. was enrolled. Upon further questioning, the mother testified that she had sent the paperwork along with T.A.G.'s birth certificate to the U.S. Bureau of Indian Affairs to have her enrolled. She further testified that she had not spoken with anyone since sending the paperwork to the Bureau of Indian Affairs. There was no evidence that the Fort Belknap Tribes had determined that T.A.G. was a member or eligible for membership in the Tribes.

21. After a careful review of the record, we conclude that the District Court's finding regarding T.A.G.'s status was not clearly erroneous.

ISSUE 2

22. Did the District Court err when it denied the mother's motion to continue?

23. The afternoon prior to the hearing on the petition to terminate parental rights, the mother filed a motion to continue and a brief in support thereof. The supporting brief stated that:

This motion was made on the ground . . . [that the mother] wishes to invoke the protections of the Indian Child Welfare Act, 25 U.S.C.A. Sections 1901, et seq. . . . .

She wishes to have the Fort Belknap Tribe intervene and assume jurisdiction in the matter of the custody of her child . . . .

The undersigned has been informed today that it is the practice of the Fort Belknap Tribe to intervene in child protection matters in which the parent asks the Tribe to intervene.

(Emphasis added.) Additionally, the mother asserted that the Child Services Coordinator of the Fort Belknap Tribe was at a training seminar and, therefore, was unavailable to meet with her regarding intervention. She also asserted that the Child Services office of Fort Belknap was in the process of moving at approximately the time that the notices of the State court proceedings were sent to the Tribes, and that some documents may have been misplaced because documents had been lost in the past. Therefore, the mother asserted that it was possible that the Tribes' failure to intervene may not have been an intentional decision not to intervene in the action, but was inadvertent.

24. At the hearing on the petition to terminate parental rights, the court stated that under the circumstances, the motion to continue was denied and for the benefit of T.A.G., the matter would proceed.

25. The Indian Child Welfare Act, 25 U.S.C. 1911(b) and (c) allows for transfer to tribal court or tribal intervention in the action, and states that:

(b) Transfer of Proceedings; declination by tribal court

In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.

(c) State court proceedings; intervention

In any State Court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding.

Absent a clear determination that T.A.G. was eligible for enrollment, the Tribes would not have had the authority to intervene or have the action transferred to tribal court.

26. Furthermore, the proceedings regarding the placement of T.A.G. originally commenced in 1995. The Fort Belknap Tribes were notified two times of the pending state court proceedings. The Tribes failed to respond to both notices. We have held that Tribes effectively decline transfer of jurisdiction or intervention when they fail to request transfer or to intervene in the state court proceedings after being notified of such proceedings. See In re A.P., 1998 MT 176, 21, 289 Mont. 521, 21, 962 P.2d 1186, 21.

27. Finally, assuming the mother's motion to continue should be construed as a motion to transfer or allow intervention, it was not made until nearly two years after the state court proceedings had commenced. As the District Court stated, the motion came at the "eleven and a half hour," late the afternoon prior to the hearing on the petition to terminate parental rights. We have previously discussed the federal guidelines addressing the promptness of tribal interventions in ICWA cases in state courts. See In re A.P., 26. The federal guidelines state that:

This section [25 U.S.C. 1911(c)] specifies that requests are to be made promptly after receiving notice of the proceeding . . .While the Act permits intervention at any point in the proceeding, it does not explicitly authorize transfer requests at any time. Late interventions do not have nearly the disruptive effect on the proceeding that last minute transfers do . . . . Although the Act does not explicitly require transfer petitions to be timely, it does authorize the court to refuse to transfer a case for good cause. When a party who could have petitioned earlier waits until the case is almost complete to ask that it be transferred to another court and retried, good cause exists to deny the request.

In re A.P., 26 (quoting 44 Fed. Reg. 67590 (1979)) (emphasis added). The mother's motion to continue stated that she wanted the "Fort Belknap Tribe to intervene and assume jurisdiction in the matter," and that she "wishes to have questions regarding care and custody of . . . [T.A.G.] decided by the Fort Belknap Tribal Court." Such language indicates that the mother wanted not only intervention but ultimate transfer to the Tribal court.

28. In this case, the District Court had good cause to deny the mother's request. Ample evidence existed that the Tribes declined to intervene and would do so again if asked by the mother. Additionally, the mother had more than sufficient time to request the Tribes to intervene. Finally, and perhaps most importantly, as the court stated at the commencement of the termination hearing, proceeding with the matter was in the best interests of T.A.G.

29. We conclude that the District Court did not abuse its discretion when it denied the mother's motion to continue.

ISSUE 3

30. Was the mother's counsel ineffective because he did not object to the State's failure to notify the Tribe of the termination proceeding as mandated by 25 U.S.C. 1911(b), because he failed to petition the court to transfer jurisdiction to the Tribal court, and because he did not raise the issue of the State's compliance with the Americans with Disabilities Act?

.31. On appeal, the mother contends that her court-appointed counsel in the proceedings below was ineffective for not objecting to the court's failure to notify the Tribes of the termination hearing. She contends that the Tribes were not notified of the termination proceeding as mandated by the ICWA, 25 U.S.C. 1912(a). 25 U.S.C. 1912(a) provides that: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe . . . of the pending proceedings and of their right of intervention . . . .

32. At the commencement of the state court proceedings, the Tribes were twice notified of the pending state court action as required by the ICWA. The Tribes did not respond and did not intervene at that time. Failure of the Tribes to intervene could reasonably be interpreted to mean that they declined to intervene or assume jurisdiction in the case. See In re A.P., 21. The State complied with the requirements of the ICWA when it sent the first two notices of the pending state court proceedings. The State was not required to send a third notice to the Tribes.

33. We conclude that the mother's counsel was not ineffective for failing to object to the State's failure to notify the Tribes of the petition to terminate the mother's parental rights.

.1. Failure to File a petition to Transfer.

34. The mother's counsel, rather than filing a petition to transfer jurisdiction to the Tribal Court, filed a motion to continue. The brief in support of the motion to continue stated that it was made on the "ground that . . . [the mother] wishes to invoke the protections of the Indian Child Welfare Act, 25 U.S.C.A. Section 1901, et seq." The brief further stated that the mother is an enrolled tribal member, and that she wished "to have the Fort Belknap Tribe intervene and assume jurisdiction in the matter of the custody of her child." (Emphasis added.) In our previous discussion, we assumed that the motion to continue was, in substance, a motion to transfer, and that the court did not abuse its discretion when it was denied. Therefore, counsel for the mother was not ineffective for failing to file a motion to transfer.

.As we concluded in Issue 1, the question of whether T.A.G. was an "Indian child" within the meaning of the ICWA was the threshold question in this case. The District Court found that the evidence was inconclusive that T.A.G. was an "Indian child," and we affirmed.

36. Therefore, we conclude that the District Court did not err when it did not hold a hearing on the motion to transfer jurisdiction to the Tribal court.

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IN THE SUPREME COURT OF THE STATE OF MONTANA

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No. 98-443, 1999 MT 78

294 Mont. 87, 976 P.2d 988

April 20, 1999

IN RE M.P.M. and A.R.M., Youths in Need of Care.

("Qualified Expert Witnesses")


FACTUAL BACKGROUND

5 In June 1994, the Department of Public Health and Human Services began receiving reports regarding the mother of M.P.M. The reports raised concerns for the welfare of the child because of alleged drug use in the home in the child's presence. Thereafter, Department social workers made numerous unsuccessful attempts to contact the mother. In 1996, she had another child, A.R.M. Reports of drug use and child neglect continued through 1998. The youths' mother had been living with her mother, who had been caring for the children periodically for several years. In the fall of 1997, the maternal grandmother filed a petition in the District Court for the Thirteenth Judicial District requesting guardianship of the children. However, that petition was ultimately dismissed by District Judge Russell Fagg.

..10 The Department argues on appeal that the District Court exceeded its authority when it ordered the Department to transfer custody of the children to their father after it had dismissed the TIA petition.

11 The youths' father and the Northern Cheyenne Tribe filed a joint appellate brief in which they assert that the District Court did not err in failing to review the guardianship action, and that the court had the discretion to weigh the evidence. They further assert that even if the court erred by disregarding the guardianship file, it was harmless error because the Indian Child Welfare Act would have required that any action by the State be supported by testimony from an expert witness, and no expert evidence was presented. Additionally, they contend that 25 U.S.C. 1912(d) (1998), would have required proof that remedial efforts had been unsuccessful in keeping the children in the custody of their parents, and no evidence of that type was offered.

14 The children's mother and the guardian ad litem contend that it was incumbent upon the District Court to examine the guardianship file prior to dismissing the petition for temporary investigative authority. In response, the father and the Northern Cheyenne Tribe argue first that the District Court had the discretion to weigh the evidence presented at the show cause hearing; and, second, that assuming the District Court erred, the error was harmless because the requirements of the Indian Child Welfare Act (ICWA) for foster care placement or termination of parental rights had not been met.

15 The State conceded in documents filed in the District Court that M.P.M. and A.R.M. are Indian children and that the Act applies.

16 The Indian Child Welfare Act provides in relevant part:

(d) Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under state law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

(e) No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, 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(d) and (e) (1998) (emphasis added).

17 Section 1912(d) of the ICWA requires that active efforts be made to provide remedial services and rehabilitation programs to prevent the breakup of the family. At the show cause hearing, Department social workers testified that they had not met the father nor had any form of contact with him. They testified that the only contact they did have with the family was with the mother, the children, the maternal grandmother, and the paternal grandfather. The father testified that he had not met any of the Department social workers. The father could not have been offered remedial or rehabilitative services if the Department had not had any contact with him. Therefore, the requirement that remedial or rehabilitative services be provided to prevent the breakup of the family was not met.

18 The father and Tribe also argue that the qualified expert witness requirement of the ICWA was not satisfied. The only testimony presented at the show cause hearing was from two Department social workers and the children's father. The father and the Tribe contend that social workers are not experts. We have concluded that it is possible for a social worker to be an expert witness, but that in ICWA cases, special Department of Interior guidelines exist that should be considered when deciding whether the expert is qualified. See In re M.E.M. (1981), 195 Mont. 329, 336-37, 635 P.2d 1313, 1317-18. In In re M.E.M., we did not decide whether it was error to admit the testimony of the social worker as expert testimony. We did, however, conclude that:

In deciding whether there is proper foundation for an expert opinion, the trial court should consider the Department of Interior guidelines which provide:

"b. Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:

"(i) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.

"(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe.

"(iii) A professional person having substantial education and experience in the area of his or her specialty." 44 Fed.Reg. 67593 (1979).

In re M.E.M., 195 Mont. at 336-37, 635 P.2d at 1317-18. There is no indication in the record that the Department of Interior guidelines were considered. Nor do we find from our review of the record any other foundation which would qualify either of the social workers as experts pursuant to the ICWA. As a result, the qualified expert witness requirement of the ICWA was not met.

19 In order for courts to grant TIA petitions when Indian children are involved, the requirements of the ICWA must be met. The requirements of the ICWA, 25 U.S.C. 1912 (d) and (e), were not satisfied in this case. Therefore, we conclude that the District Court could not have granted temporary investigative authority even if it had reviewed the guardianship file, and its failure to do so, if erroneous, was harmless.

..24 We conclude that the District Court exceeded its authority when it ordered that the children be turned over to the custody of their father after dismissing the petition for TIA. The judgment of the District Court by which it ordered the Department to return the children to the custody of their father is reversed. The District Court's dismissal of the petition for TIA is affirmed.

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IN THE SUPREME COURT OF THE STATE OF MONTANA

No. 99-146, 2000 MT 64

299 Mont. 62, 997 P. 2d 776

Decided: March 16, 2000

IN THE MATTER OF C.H., A Youth in Need of Care.

Good Cause

1.The Confederated Tribes of Siletz Indians of Oregon (the Tribe) and Scott and Tena Ehret (the Ehrets) appeal from the order of the Eighteenth Judicial District Court, Gallatin County, continuing the foster care placement of C.H., a youth in need of care, with Janine and Doug Alberda (the Alberdas) and authorizing the Montana Department of Public Health and Human Services (DPHHS) to commence proceedings for the Alberdas to formally adopt C.H. We reverse and remand with instructions.

2.The dispositive issue is whether the District Court erred in concluding that good cause exists to deviate from the adoptive placement preferences set forth in 25 U.S.C. 1915(a).

BACKGROUND

3.C.H. was born on March 19, 1997. On June 12, 1997, she was admitted to Bozeman Deaconess Hospital where it was discovered she had 16 fractured ribs in various stages of healing, as well as fresh bruises on her torso and limbs. C.H.'s examining physician determined that the rib fractures and bruising were consistent with trauma caused by an adult holding and squeezing her until her ribs broke. Based on this evidence of abuse, DPHHS placed C.H. in emergency protective custody and, upon her release from the hospital, placed her in foster care with the Alberdas. The Alberdas are not related to C.H. and are non-Indians. DPHHS subsequently petitioned for--and the District Court granted--temporary investigative authority over C.H.

4.DPHHS then discovered that C.H. is enrollable as a member of the Tribe and, consequently, that the abuse and neglect proceeding involving C.H. was subject to the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901, et seq. Pursuant to the ICWA, DPHHS notified the Tribe of the proceedings. On August 18, 1997, the Tribe filed motions to intervene and to transfer jurisdiction over the proceeding to the Siletz Tribal Court. The District Court granted the Tribe's motion to intervene and scheduled a hearing on the motion to transfer jurisdiction. The Tribe subsequently amended its motion to transfer jurisdiction by withdrawing its opposition to the District Court's jurisdiction over the adjudicatory phase of the abuse and neglect proceeding. It maintained its desire to acquire jurisdiction over the eventual disposition of the case, however, to ensure that C.H. was placed in a home which met the placement preferences set forth in 1915 of the ICWA.

5.On July 21, 1998, DPHHS petitioned the District Court to terminate the parental rights of C.H.'s birth parents on the basis that they had signed stipulations voluntarily relinquishing their parental rights. The District Court entered its order terminating parental rights and granting custody of C.H. to DPHHS, with the right to consent to her adoption, on August 10, 1998. The court also scheduled a review hearing in January of 1999 at which DPHHS was to report regarding the permanent placement of C.H. in an adoptive home. Two days following entry of this order, the Ehrets moved to intervene in the proceeding as interested parties on the basis that Tena Ehret is a member of C.H.'s extended family, as well as a member of the Tribe, and they intended to initiate proceedings to formally adopt C.H. The District Court granted the motion.

6.In September of 1998, the Tribe renewed its motion to transfer jurisdiction of the case to the Siletz Tribal Court based on its concerns that DPHHS was not properly considering the Tribe's recommendations for permanent placement of C.H. as required by the ICWA. The District Court denied the motion and scheduled an evidentiary hearing on the issues of C.H.'s permanent placement pursuant to the placement preferences set forth in 1915 of the ICWA and whether good cause existed to avoid those placement preferences. Prior to the hearing, the Alberdas moved to intervene in the proceeding as interested parties, based on their intent to pursue formal adoption of C.H., and the District Court granted the motion.

7.At the evidentiary hearing in December of 1998, the Tribe and the Ehrets contended that, in determining the adoptive placement of C.H. pursuant to 25 U.S.C. 1915(a), the District Court was required to give preference to placement with extended family members, members of the Tribe or a member of another Indian tribe. Accordingly, they argued that C.H. should be placed permanently with the Ehrets because Tena Ehret was both an extended family member and a member of the Tribe. DPHHS and the Alberdas contended that, based on C.H.'s extraordinary needs, good cause existed to deviate from the 25 U.S.C. 1915(a) placement preferences and to allow DPHHS to place C.H. with the Alberdas on a permanent basis.

8.The District Court subsequently entered its findings of fact, conclusions of law and order, in which it concluded that C.H. had extraordinary physical and emotional needs which constituted good cause to deviate from the ICWA placement preferences. The court denied the proposed adoptive placement with the Ehrets and ordered that C.H. remain in her current foster care placement pending her formal adoption by the Alberdas. The Tribe and the Ehrets appeal.

STANDARD OF REVIEW

9.The District Court supported its determination that good cause existed to deviate from the ICWA adoptive placement preferences with findings of fact and conclusions of law. The Tribe and the Ehrets do not dispute any of the court's findings of fact. Rather, they contend that the District Court's conclusion that those findings constitute good cause to avoid the placement preferences is erroneous. A district court's application of the law to the facts of a case is a legal conclusion which we review to determine whether the interpretation of the law is correct. Bank of Baker v. Mikelson Land Co., 1999 MT 76, 26, 294 Mont. 64, 26, 979 P.2d 180, 26.

DISCUSSION

10.Did the District Court err in concluding that good cause exists to deviate from the adoptive placement preferences set forth in 25 U.S.C. 1915(a)?

11.The express policy of the ICWA is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . . .

25 U.S.C. 1902. One method by which the ICWA implements this policy is to provide preferences for the adoptive placement of Indian children.

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.

25 U.S.C. 1915(a). A court is required to order an adoptive placement of an Indian child in accordance with these preferences unless it concludes that good cause exists to deviate from them. Thus, the ICWA expresses the presumption that it is in an Indian child's best interests to be placed in an Indian home in conformance with the 1915 placement preferences. Matter of Adoption of Riffle (1996), 277 Mont. 388, 393-94, 922 P.2d 510, 514 (Riffle II).

12.The ICWA does not define the term "good cause" as used in 25 U.S.C. 1915(a); nor does it set forth factors to be considered in determining whether good cause exists. However, the Department of the Interior, via the Bureau of Indian Affairs (BIA), promulgated Guidelines for State Courts; Indian Child Custody Proceedings (the guidelines) to assist in the interpretation and application of the ICWA. See 44 Fed. Reg. 67,584 to 67,595 (1979). We previously have determined that these guidelines are persuasive and we apply them when interpreting the ICWA. See, e.g., Matter of Adoption of H.M.O., 1998 MT 175, 30, 289 Mont. 509, 30, 962 P.2d 1191, 30; Matter of Adoption of Riffle (1995), 273 Mont. 237, 242, 902 P.2d 542, 545; Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318.

13.The BIA's statement of policy regarding the ICWA and the guidelines is as follows:

Congress through the [ICWA] has expressed its clear preference for keeping Indian children with their families, deferring to tribal judgment on matters concerning the custody of tribal children, and placing Indian children who must be removed from their homes within their own families or Indian tribes. Proceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to these preferences. The [ICWA], the federal regulations implementing the [ICWA], the recommended guidelines and any state statutes, regulations or rules promulgated to implement the [ICWA] shall be liberally construed in favor of a result that is consistent with these preferences.

44 Fed. Reg. 67,585-86. With regard to the "good cause" exception to the adoptive placement preferences in 25 U.S.C. 1915(a), the guidelines provide:

(a) For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not to follow the order of preference . . . shall be based on one or more of the following considerations:

(i) The request of the biological parents or the child when the child is of sufficient age.

(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.

(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.

(b) The burden of establishing the existence of good cause not to follow the order of preferences . . . shall be on the party urging that the preferences not be followed.

44 Fed. Reg. 67,594. The BIA's commentary to the guidelines further addresses the consideration of an Indian child's extraordinary physical and emotional needs as constituting good cause. In a few cases a child may need highly specialized treatment services that are unavailable in the community where the families who meet the preference criteria live. Paragraph (ii) recommends that such considerations be considered as good cause to the contrary. 44 Fed. Reg. 67,594.

14.Under the guidelines set forth above, it is clear that DPHHS and the Alberdas, as the parties seeking to avoid the ICWA adoptive placement preferences and place C.H. permanently with the Alberdas, had the burden in the District Court of establishing good cause to do so. To that end, they presented the testimony of several expert witnesses to demonstrate that C.H. had extraordinary physical and emotional needs. The District Court entered findings of fact based on the expert testimony and concluded that the findings established C.H. had extraordinary physical and emotional needs constituting good cause to deviate from the placement preferences set forth in 25 U.S.C. 1915(a). The Tribe and the Ehrets assert the court erred in concluding that, based on the record in this case, good cause exists to avoid the ICWA's placement preferences. In reviewing the District Court's conclusion regarding good cause, we must keep in mind the policies of the ICWA and the guidelines, which provide that the requirements to be met before reaching any result contrary to the statutory placement preferences must be strictly applied, and that the ICWA must be liberally construed in favor of a result that is consistent with the preferences.

15.Briefly stated, the pertinent facts relating to C.H.'s physical and emotional condition, as set forth in the District Court's findings of fact, are as follows. C.H. currently is developing normally for a child of her age and is thriving. Although she may have been exposed to drugs and alcohol in utero, she exhibits no symptoms of fetal alcohol syndrome or effect; nor are there indications of other physical or psychological problems. However, as a result of the possible drug and alcohol exposure, she is at high risk for neurodevelopmental problems and emotional disorders which may not surface until later in her life.

16.The District Court further found that, as a result of C.H.'s emotional bond with the Alberdas and the abuse she experienced early in life, she is at risk for developing an attachment disorder should she be removed from the Alberdas' home. Although there was extensive testimony regarding attachment disorders in general, none of the expert witnesses testified that C.H. was certain to develop an attachment disorder should she be moved or that any emotional harm resulting from a change in custody would be irreparable. The record reflects that, to date, C.H. has shown great emotional resiliency.

17.The District Court also found that the Alberdas were experienced foster care parents who have given C.H. a safe, stable and loving home. On the other hand, the court found that, although the Ehrets had received training and were currently licensed to give foster care, they had limited experience handling children with the type of emotional problems which C.H. may develop later in life. The court also found, however, that the Ehrets are currently giving foster care to a child with special needs due to possible fetal alcohol effect. Furthermore, DPHHS determined that C.H.'s abuser, although never actually identified, was an immediate family member. On that basis, the District Court found that, because the Ehrets are extended family members, the potential exists that C.H. would come into contact with her abuser in the future should she be placed in their home.

18.Based on these findings, the District Court entered a number of conclusions of law which we address in turn. In its first two conclusions, the court correctly concluded that the ICWA is applicable to this case, 1915(a) of the ICWA provides specific preferences for adoptive placement of an Indian child absent good cause to the contrary and DPHHS had the burden of establishing that good cause existed for deviating from the preferences. In its third conclusion, the District Court noted the absence of a definition of "good cause" in the ICWA and accurately set forth the three considerations provided by the guidelines upon which a determination of good cause is to be made. The court then concluded, however, that the guidelines' provisions are merely "examples"--and not an exhaustive listing--of what may constitute good cause to avoid the placement preferences. We disagree.

19.The guidelines provide that a determination of good cause to avoid the preferences "shall be based on one or more of" three stated factors. 44 Fed. Reg. 67,594. At least one court has held that this language indicates that the determination of whether good cause exists to deviate from the ICWA placement preferences must be limited to consideration of the three factors set forth in the guidelines. See Matter of Custody of S.E.G. (Minn. 1994), 521 N.W.2d 357, 363. We agree with the Minnesota Supreme Court that, in light of the plain language used in the guidelines, the three expressly stated factors cannot be interpreted as merely illustrative of the circumstances which may constitute good cause. Rather, they are the only circumstances constituting good cause to avoid the 1915(a) adoptive placement preferences. We conclude the District Court erred in determining that the factors set forth in the guidelines and the BIA's related commentary are merely examples, and not an exhaustive listing, of circumstances which constitute good cause.

20.In its fourth conclusion, the District Court listed, in side-by-side format, record-based positive and negative factors relative to permanently placing C.H. with the Alberdas as opposed to placing her with the Ehrets. With regard to continuing custody with the Alberdas, the court listed the following positive factors: C.H.'s dramatic healing from physical abuse while in the Alberdas' care and the hopeful prospects of emotional healing; the Alberdas' experience with abused children; avoiding trauma to C.H. resulting from the separation from the Alberdas; avoiding the risk of an attachment disorder; protecting C.H. from hostile family; coping with fetal alcohol effect; and the Alberdas' hope to deal with adoption and cultural issues. As a negative factor, the court noted C.H. would have little exposure to Indian culture if placed with the Alberdas.

21.The District Court also listed the following positive factors regarding placing C.H. with the Ehrets: a promise by the Ehrets to continue C.H.'s physical and emotional healing; the Ehrets' hope to cope with fetal alcohol effect, compounded by the effect of an attachment disorder; their hope to cope with adoption and cultural issues; and exposure to C.H.'s Indian culture. As negative factors, the court noted the Ehrets' lack of experience caring for abused children; the emotional trauma to C.H. resulting from the custody change; the risk of an attachment disorder; and C.H.'s exposure to hostile family members.

22.The District Court then determined that "[i]f the competing factors are balanced, the scale weighs heavily, by clear and convincing evidence, in favor of retention in the Alberda home . . ." and that the listed factors "favor a finding of good cause" to avoid the ICWA placement preferences. The court's application of a balancing test weighing the benefits and detriments of placing C.H. with the Alberdas as opposed to the Ehrets is, in essence, a straightforward determination of C.H.'s best interests. See In re J.J.G., 1998 MT 28, 25, 287 Mont. 313, 25, 954 P.2d 1120, 25. However, while the best interests of the child is an appropriate and significant factor in custody cases under state law, it is improper to apply a best interests standard when determining whether good cause exists to avoid the ICWA placement preferences, because the ICWA expresses the presumption that it is in an Indian child's best interests to be placed in conformance with the preferences. Riffle II, 277 Mont. at 393-95, 922 P.2d at 514-15. Consequently, the District Court's conclusion that the stated factors weigh in favor of a determination that good cause exists is an incorrect application of the law. As a result, we conclude that the District Court's fourth conclusion of law does not support a determination that good cause exists to avoid the 1915(a) placement preferences.

23.In its fifth conclusion, the District Court listed nine items it concluded were extraordinary physical and emotional needs of C.H. which constituted good cause to avoid the statutorily-preferred placement with the Ehrets and place her permanently with the Alberdas. We address each in turn to determine whether the court correctly concluded it is an extraordinary physical or emotional need.

. It has been held that emotional or physical trauma to a child resulting from a change in custody can constitute good cause to avoid the ICWA placement preferences. See Matter of Baby Boy Doe (Idaho 1995), 902 P.2d 477, 487. There, however, the expert witnesses testified unanimously that trauma was certain to result from a transfer of custody. Matter of Baby Boy Doe, 902 P.2d at 487. Here, the record is devoid of testimony that C.H. was certain to develop an attachment disorder if removed from the Alberdas' home. Nor was there testimony that she was certain to suffer from other neuro-developmental problems.

.28.As its third and fourth items in the list of C.H.'s extraordinary physical and emotional needs, the District Court noted that the Alberdas had experience in caring for over 200 foster children, many of whom had emotional disturbances, and that C.H. had been in foster care for an unusual length of time. The first item merely states the Alberdas' experience as caregivers; it does not relate to C.H.'s current emotional or physical condition. As to the second item, the court made no determination that the length of time C.H. has been in foster care created any extraordinary physical or emotional need on her part which would justify avoiding the ICWA placement preferences. As a result, while these factual statements may be correct, we conclude they do not constitute extraordinary physical or emotional needs as contemplated by the guidelines.

29.Next, the District Court concluded that C.H.'s strong emotional bond with the Alberdas constituted an extraordinary emotional need. It is undisputed that C.H. has bonded with the Alberdas and that a change in custody would be emotionally painful. As stated above, however, the parties seeking to avoid the ICWA placement preferences have the burden of establishing that C.H.'s emotional bond with the Alberdas is an extraordinary emotional need constituting good cause, and the Alberdas and DPHHS advance no authority under which emotional bonding properly may be considered an extraordinary emotional need. Indeed, the emotional attachment between a non-Indian custodian and an Indian child should not necessarily outweigh the interests of the Tribe and the child in having that child raised in the Indian community. See Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 54, 109 S.Ct. 1597, 1611, 104 L.Ed.2d 29, 50; see also In re Adoption of M.T.S. (Minn. App. 1992), 489 N.W.2d 285, 288. Moreover, a conclusion that an Indian child should be placed with a non-Indian foster parent because of a strong emotional bond is essentially a determination that it is in the child's best interests to be so placed. See M.T.S., 489 N.W.2d at 288. As stated above, while the best interests of the child is an appropriate and significant factor in custody cases under state law, it is an improper test to use in ICWA cases because the ICWA expresses the presumption that it is in an Indian child's best interests to be placed in accordance with the statutory preferences. Riffle II, 277 Mont. at 393-94, 922 P.2d at 514-15. To allow emotional bonding--a normal and desirable outcome when, as here, a child lives with a foster family for several years--to constitute an "extraordinary" emotional need would essentially negate the ICWA presumption. Consequently, we conclude that C.H.'s emotional attachment to the Alberdas does not constitute an extraordinary emotional need sufficient to establish good cause to avoid the ICWA placement preferences.

.35.Consequently, while the District Court's determination that potential exists for C.H. to come into contact with her abuser if she is placed with the Ehrets is not incorrect, there is no evidence that such contact is certain, or even likely, to occur. In addition, the potential for C.H. to come in contact with her abuser also exists if she remains with the Alberdas in Bozeman. Finally, any potential contact with her unidentified abuser while residing with the Ehrets hundreds of miles from Bozeman would be in passing rather than direct and ongoing. Matter of Baby Boy Doe is distinguishable on these bases. As with the risk of future physical and emotional problems, a slight risk of passing contact with an unidentified abuser in the future is too nebulous a standard on which to determine that good cause exists. We conclude that the possibility C.H. would have contact with her abuser sometime in the future does not constitute an extraordinary physical or emotional need to justify avoiding the 1915(a) placement preferences.

36.As the final item in the District Court's list of C.H.'s extraordinary physical and emotional needs, the court stated that "[t]he balance described above, fall[s] convincingly in favor of the Alberdas." This statement clearly reflects the court's application of a best interests of the child balancing test which, as discussed above, is inappropriate in an ICWA proceeding. See Riffle II, 277 Mont. at 393-95, 922 P.2d at 514-15. Moreover, the statement makes no reference to C.H.'s needs, either physical or emotional, and we conclude it does not amount to an extraordinary physical or emotional need.

..38.In light of our holdings, it is clear that proceedings must be initiated for the Ehrets, who are a statutorily-preferred family under 1915 of the ICWA, to adopt C.H. We note that we are not reversing the District Court's continuation of foster care placement of C.H. with the Alberdas because that portion of the court's order was not challenged on appeal. At the same time, we are aware that C.H. and the Ehrets have had only a limited opportunity to develop a relationship to date and that the ultimate adoption of C.H. by the Ehrets--after such a long placement with the Alberdas--will be emotionally painful for her. The situation is complicated by the substantial distance between C.H.'s current home in Bozeman and the Ehrets' home in Oregon, making a gradual transition in care and building of relationships more difficult. Nonetheless, we encourage the parties to work together during the pendency of adoption proceedings so that C.H.'s transition to the Ehrets will result in as little emotional trauma to her as possible.

39.Reversed and remanded to the District Court for entry of an order directing DPHHS to promptly commence proceedings for the Ehrets to formally adopt C.H.

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STATE OF MINNESOTA IN COURT OF APPEALS

BACK TO THE TOP


Hennepin County District Court
File No. F59950123

C2-00-179

Filed September 1, 2000


In the Matter of the Welfare of: S.N.R.

Determination that a child is a member


Willis, Judge Affirmed
Concurring specially, Randall, Judge

OPINION

Appellant Carole Freeman argues that the juvenile court erred in concluding that the Indian Child Welfare Act, 25 U.S.C. 1901-1963 (1994), is applicable to adoption proceedings involving S.N.R. and in granting summary judgment to respondent Hennepin County Department of Children and Family Services and dismissing Freeman's petition to adopt S.N.R. We affirm.

FACTS

S.N.R. was born in April 1993. Soon after her birth, respondent Hennepin County Department of Children and Family Services ("HCDCFS") placed S.N.R. in the licensed foster care of C.G., whose partner was appellant Carole Freeman. S.N.R.'s mother, who was an enrolled member of the Leech Lake band of the Minnesota Chippewa Tribe, died in 1997. In August 1997, S.N.R.'s father's parental rights were terminated, and the Commissioner of Human Services became her guardian and legal custodian. In early 1998, HCDCFS contracted with the Professional Association of Treatment Homes ("PATH") to conduct an adoption study to evaluate C.G. and Freeman's potential to serve as adoptive parents. The recommendation of the study was favorable. But in the spring of 1998, C.G. and Freeman's relationship deteriorated, the two separated, and S.N.R. remained with C.G. Freeman then obtained a license to serve as a foster-care provider, and in August 1998 HCDCFS placed S.N.R. in foster care with Freeman.

HCDCFS again contracted with PATH to conduct an adoption study, this time with Freeman as the sole potential adoptive parent. Before the issuance of the written report, which HCDCFS understood would be unfavorable to Freeman, HCDCFS decided that it would not approve adoption by Freeman. In January 1999, the juvenile court held hearings regarding HCDCFS's motion to remove S.N.R. from Freeman's care, place her temporarily in the care of her siblings' then-foster parents, and then place her with respondents Joseph and Theresa Myers, the siblings' prospective adoptive parents. The court ordered that S.N.R. remain in Freeman's care and that S.N.R. have monthly visits with her siblings.

In March 1999, Freeman petitioned to adopt S.N.R. In June 1999, Lillian Reese, the Director of Family Services of respondent Leech Lake Band of Ojibwe, notified Hennepin County that the band recognized S.N.R. and her siblings "as members of the Leech Lake Reservation." As a result of this notification, HCDCFS moved the juvenile court to find that the Indian Child Welfare Act, 25 U.S.C. 1901-1963 (1994) ("ICWA"), was applicable to the proceedings. In July 1999, the band moved, under the ICWA, to intervene in the juvenile court proceedings. The Myerses moved to intervene in the proceedings and to be allowed to petition to adopt S.N.R.

The juvenile court heard the motions on August 6, 1999. The court granted the band's motion to intervene on a permissive basis, scheduled an evidentiary hearing on the issue of whether S.N.R. is in fact an "Indian child" within the meaning of the ICWA, and postponed consideration of the other motions. [1] Following a September 3, 1999, hearing, the court issued an order determining that all further adoption proceedings were subject to the ICWA, granting the band's motion to intervene as a matter of right, and granting the Myerses' motion to intervene and to be allowed to petition to adopt S.N.R.

In December 1999, HCDCFS moved for summary judgment, seeking dismissal of Freeman's petition to adopt S.N.R. On January 7, 2000, the juvenile court granted summary judgment for HCDCFS and dismissed Freeman's petition. Freeman appeals from the September 1999 and January 2000 orders.

ISSUES

1. Did the juvenile court err in concluding that a tribal determination that a child is eligible for membership in that tribe is conclusive evidence that the child is an "Indian child" under the ICWA?

2. Did the juvenile court err in granting summary judgment to HCDCFS and dismissing Freeman's petition to adopt S.N.R. because Freeman could not demonstrate good cause to deviate from the placement preferences established by the ICWA?

.I. Applicability of the ICWA.

.In re Paternity of J.A.V., 536 N.W.2d 896, 900 (Minn. App. 1995) (quoting In re Appeal of Maricopa Juvenile Action No. A-25525, 667 P.2d 228, 231 (Ariz. Ct. App. 1983)), aff'd 547 N.W.2d 374 (Minn. 1996). The ICWA defines "child custody proceeding" to include adoptive placements. 25 U.S.C. 1903(1)(iv) (1994). Thus, it is clear that the proceedings here are child-custody proceedings under the ICWA. Section 1903 of the ICWA defines "Indian child" as

any unmarried person who is under age eighteen and is either (a) a member of an Indian Tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

1903(4). [2] It is undisputed that S.N.R. is not currently a member of an "Indian tribe" and that her mother, T.R., was an enrolled member of the Leech Lake Band. Freeman challenges the juvenile court's conclusion that because the Leech Lake Band has determined that S.N.R. is eligible for band membership, and such determinations are conclusive evidence of eligibility under the ICWA, S.N.R. is an Indian child.

We review this question of law de novo.

The Bureau of Indian Affairs has published guidelines to assist state courts in their implementation of the ICWA. See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,585 (1979) [hereinafter BIA Guidelines]. The BIA Guidelines provide that under the ICWA, "[t]he determination by a tribe that a child * * * is or is not eligible for membership in that tribe * * * is conclusive." 44 Fed. Reg. at 67,586 ( B.1(b)(i)). While the BIA Guidelines are not binding on courts, unless Congress specifically invests the bureau with the authority to implement rules pursuant to the Act, Minnesota appellate courts have consistently utilized the Guidelines to answer as a matter of law questions unanswered by the language of the ICWA itself. .And a number of other jurisdictions have concluded that a tribal determination that a child is a member of a tribe or eligible for membership in a tribe is conclusive evidence that the child is an "Indian child" under the ICWA. See, e.g., In re Junious M., 193 Cal. Rptr. 40, 43 (Cal. Ct. App 1983); In re Shawboose, 438 N.W.2d 272, 273 (Mich. Ct. App. 1989); In re Adoption of Riffle, 922 P.2d 510, 513 (Mont. 1996); State ex rel. Juvenile Dep't v. Tucker, 710 P.2d 793, 797 (Or. Ct. App. 1985); People in the interest of J.J. and S.J., 454 N.W.2d 317, 327-28 (S.D. 1990); In re M.C.P., 571 A.2d 627, 634 (Vt. 1989); In re Dependency of Colnar, 757 P.2d 534, 535-36 (Wash. Ct. App. 1988); see also In re Baby Boy Doe, 849 P.2d 925, 931 (Idaho 1993) (stating that court must make "its own determination" regarding eligibility where neither tribe nor BIA has made conclusive determination regarding eligibility).

Freeman concedes that the Leech Lake Band has the authority to determine its own membership. She argues, however, that when applying the ICWA, a juvenile court "must be satisfied that the Tribe has made an appropriate `determination'" to give that determination conclusive effect and that, therefore, the juvenile court "must inquire" whether the tribe correctly applied its internal standards to determine that a child is eligible for membership.

To support this contention, Freeman first cites United States v. Broncheau, 597 F.2d 1260 (9th Cir. 1979), which concludes that enrollment in a tribe is not "necessarily determinative" of "Indian" status under 18 U.S.C. 1153. 597 F.2d at 1263. But Broncheau seeks to answer a question entirely different from the one before us. .

Freeman next cites a section of Broncheau in which the court discusses a claim that section 1153 is unconstitutional because the term "Indian" is not statutorily defined and is therefore unconstitutionally vague. 597 F.2d at 1263. The court dismissed this claim because the term "Indian" in section 1153 has been judicially defined, citing cases in which courts have reviewed a number of factors to determine whether a party is an Indian under section 1153. Id. But in contrast with section 1153, Congress indicated that through the ICWA it sought to protect the interests of Indian tribes with respect to their children. See 25 U.S.C. 1901(3) (stating "that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children"); 25 U.S.C 1902 (stating that the ICWA implements a policy of promoting "the stability and security of Indian tribes"); see also 25 U.S.C. 1911(c) (providing that tribe has right to intervene in any foster-care-placement or parental-right-termination proceeding involving child who is member or eligible for membership in that tribe); cf. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 44-45, 109 S. Ct. 1597, 1606 (1989) (stating that in passing the ICWA Congress was concerned with "the rights of Indian communities vis-à-vis state authorities"). And a tribe's right to determine its membership for tribal purposes "has long been recognized as central to its existence as an independent political community." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32, 98 S. Ct. 1670, 1684 n.32 (1978); see Montana v. United States, 450 U.S. 544, 564, 101 S. Ct. 1245, 1257 (1981) (noting that although they have "lost many of the attributes of sovereignty," "the Indian tribes retain their inherent power to determine tribal membership").

Freeman next cites three cases from other states in support of her argument that the district court must review the internal processes through which the tribe reached its determination that S.N.R. is a tribal member. But analysis of those cases shows that, in addition to the fact that none is binding authority here, none compels the conclusion appellant would have us arrive at. In the first of these cases, the court made its own determination of a child's eligibility for tribal membership but only because the tribe was unable to do so. See Baby Boy Doe, 849 P.2d at 930-31. In the second case, the tribe determined that a child was not eligible for membership because his ancestry was uncertain. In re Adoption of a Child of Indian Heritage, 543 A.2d 925, 933 (N.J. 1988). Describing the tribe's eligibility determination as a "current refusal to enroll" the child, and thus "not determinative of his status as an Indian child under the ICWA," the court concluded that the basis of the tribe's eligibility determination, the child's ancestry, was a question of fact that could only be resolved at an evidentiary hearing. Id. But this conclusion does not support appellant's contention for three reasons: (1) all of the court's statements addressing whether the child was an Indian child under the ICWA are dicta: the court resolved the appeal on other grounds; (2) the court's treatment of the tribe's decision-making process as a "current refusal to enroll" the child rather than as a determination of eligibility suggests a situation more akin to Baby Boy Doe, where the tribe was unable to reach an eligibility determination, than to the current case, where the tribe has clearly made such a determination; and (3) the court states that "the tribe's refusal to enroll [the child] is not determinative of his status as an Indian child" without citing any supporting legal authority. As noted above, although lack of enrollment has been held not to be determinative of Indian status under other laws, these cases do not involve the ICWA or a tribe's determination of its membership. And in the third case, Angus v. Joseph, 655 P.2d 208 (Or. Ct. App. 1982), the court did not address whether a tribe's determination that a child is a member or eligible for membership is conclusive evidence that a child is an Indian child under the ICWA. 655 P.2d at 211-12. [3]

Freeman also cites a report of the United States Senate Committee on Indian Affairs discussing a proposed amendment to the ICWA, in which the committee argued that the ICWA should be amended to provide that when a tribe seeks to intervene in a child-placement proceeding, the tribe shall include in its motion "a statement documenting the membership or eligibility for membership of the Indian child." S. Rep. No. 105-156, at 23 (1997). But the Committee's stated intent in adding this requirement was to "provide assurances to other parties involved with Indian children that Indian tribes will follow a specified set of rules based upon their own membership requirements," not to authorize a court to inquire into the validity of a tribe's determination. Id. And even if we were to interpret this proposed amendment to authorize such inquiries, the fact that the Committee would find it necessary to amend the ICWA to provide the courts with such authority indicates that the ICWA currently does not provide such authority. Cf. Northern States Power Co. v. Commissioner of Revenue, 571 N.W.2d 573, 575-76 (Minn. App. 1997) (stating that where legislature amends statute, courts generally presume that legislature intends a change in the law). Additionally, we note that the Committee found the proposition that "tribal determinations of membership under tribal law are conclusive for the purpose of determining whether a child is an Indian child subject to the ICWA" to be "[c]onsistent with long-standing and fundamental principles of Federal Indian law." S. Rep. No. 105-156, at 23.

The ICWA is to be "liberally construed in favor of a result that is consistent" with "deferring to tribal judgment" and furthering Congressional purposes in passing the statute. . We conclude, therefore, that a tribal determination that a child is a member or eligible for membership in that tribe is conclusive evidence that a child is an "Indian child" under section 1915.

Thus, we conclude that a court seeking to determine whether a child is an "Indian child" under the ICWA is initially faced with a question of fact. The court must determine whether a tribe has concluded that a child is a member of, or eligible for membership in, an Indian tribe. [4] This inquiry is not to be an investigation of the tribe's application of its membership standards to a particular child. See, e.g., Smith, 875 F. Supp. at 1361; BIA Guidelines, 44 Fed. Reg. at 67,586 ( B.1(b)(i)). Rather, the court must determine whether the party who states that the child is a member or eligible for membership in a tribe is authorized to make such statements on the tribe's behalf. See Angus, 655 P.2d at 212.

Here, the band submitted a resolution of the Leech Lake Reservation Tribal Council that provides that

the Reservation Tribal Council has delegated its membership determinations for purposes of implementing [the ICWA] to Lillian Reese * * * for at least the past ten years.

Resolution No. 00-26 ("Re: Tribal Membership"), Leech Lake Reservation Tribal Council (Aug. 19, 1999). And Reese testified that

[a]fter reviewing all of the information available to me, I have made the determination that [S.N.R.] is eligible for membership in the Leech Lake Band of Ojibwe.

We conclude that there is no genuine issue of material fact regarding whether the Leech Lake Band has concluded that S.N.R. is eligible for membership in the band. Thus, the juvenile court did not err in concluding that S.N.R. is an Indian child within the meaning of the ICWA and that, therefore, the ICWA is applicable to her adoption proceedings.

II. Dismissal of Freeman's Petition to Adopt S.N.R.

Freeman next argues that, even if the ICWA applies to adoption proceedings involving S.N.R., the juvenile court erred in dismissing her petition. Section 1915 of the ICWA provides:

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other member's of the Indian child's tribe; or (3) other Indian families.

25 U.S.C. 1915(a).

[A] determination that good cause exists to avoid the placement preferences of section 1915 should be based upon a finding of one or more of the factors

established by the BIA Guidelines. S.E.G., 521 N.W.2d at 363. The BIA Guidelines provide that good cause not to follow the ICWA placement preferences must be based on one or more of the following factors:

(i) The request of the biological parents or the child when the child is of sufficient age.

(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.

(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria [of section 1915(a)].

BIA Guidelines, 44 Fed. Reg. at 67,594 ( F.3(a)). And a party who does meet the placement preferences of the ICWA who seeks to adopt an Indian child bears the burden of establishing good cause to depart from those preferences. Id. at 67,594 ( F.3(b)).

Freeman does not qualify as a member of S.N.R.'s extended family, as a member of the Leech Lake Band, or as a member of another Indian tribe, and Freeman did not argue to the juvenile court, and does not argue here, that she qualifies as a preferred placement. Freeman did not provide the testimony of a qualified expert witness that is required to demonstrate good cause on the basis of extraordinary physical or emotional needs of S.N.R. that would allow the juvenile court to place S.N.R. with Freeman. See S.E.G., 521 N.W.2d at 364-65. And she did not attempt to demonstrate that, after a diligent search, there were no suitable families available for placement meeting the preference criteria of section 1915. We conclude, therefore, that the juvenile court did not err in granting summary judgment to HCDCFS and dismissing Freeman's petition to adopt S.N.R. [5]

DECISION

The district court did not err in concluding that the determination of the Leech Lake Band that S.N.R. is eligible for membership in the band is conclusive evidence that S.N.R. is an Indian child within the meaning of the ICWA and that, therefore, the ICWA applied to adoption proceedings involving her. And because Freeman failed to provide the testimony of a qualified expert witness that is necessary to demonstrate good cause to deviate from the placement preferences of the ICWA, the court did not err in granting HCDCFS summary judgment and in dismissing Freeman's petition to adopt S.N.R.

Affirmed.

RANDALL, Judge (concurring specially)

I concur in the result.


Footnotes

[1] At the August 6 hearing, Freeman introduced a number of documents from the Leech Lake Band and the Minnesota Chippewa Tribe. In a September 1990 letter addressed to Hennepin County from the Minnesota Chippewa Tribe, a representative of the tribe's Human Services Division stated that S.N.R.'s siblings "are not eligible for enrollment in our Tribe with the information provided to us by your Agency." In a May 1993 document, a child-welfare worker of the Leech Lake Band stated that S.N.R. "is eligible for enrollment in this tribe." A December 1994 document from the Minnesota Chippewa Tribe noted that S.N.R. and her siblings did not possess the "1/4 [Minnesota Chippewa Tribe blood quantum] eligibility for enrollment." In January 1995, a social worker from Leech Lake Family Services stated that the children "are not eligible for enrollment in the Minnesota Chippewa Tribe." But in the June 1999 letter from Reese described above, she stated that since the 1995 letter the band "has adopted a policy of recognizing individuals as members based on their descent from tribal members," that S.N.R.'s mother was a member of the Leech Lake Band, and that, therefore, the band recognized the children as members.

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Court of Civil Appeals of Oklahoma, Division No. 3.

(Cite as: 2003 WL 22479969 (Okla.Civ.App. Div. 3))

No. 98,899.

Sept. 19, 2003.


In the Matter of Child, B.R.W.

(The "Existing Indian Family" Doctrine)

ADAMS, Presiding Judge.

OPINION

*1 1 Brandon Womack, the father of the minor child, B.R.W., and his wife, Kristina Womack (collectively, the Womacks), appeal a trial court's order denying their petition to terminate parental rights and to declare B.R.W. eligible for adoption without the consent of her mother, Felicia Schmidt (Mother). [FN1] The Womacks argue, inter alia, that the trial court erred in failing to appoint an attorney for B.R.W. We agree and reverse the order.

2 According to the Womacks, Mother's consent was made unnecessary under the provisions of 10 O.S.2001 7505-4.2(H)(1) and (I)(1).[FN2] The trial court denied the Womacks' request, specifically concluding that the Womacks had not presented proof "beyond a reasonable doubt" and had interfered with Mother's ability to maintain a relationship with the child. [FN3]

3 For reversal, the Womacks first argue that the trial court was required to appoint an attorney to represent B.R.W. Mother conceded this should have been done, but argues that the Womacks may not raise this error on appeal because they did not request the appointment of an attorney for B.R.W. in the trial court. However, "fundamental error" is an exception to the general rule that an appellant may not obtain reversal on an issue not raised in the trial court, see Pine Island RV Resort, Inc. v. Resort Management, Inc., 1996 OK 83, 922 P.2d 609, and In the Matter of Adoption of K.D.K., 1997 OK 69, 3, 940 P.2d 216, 217, holds "the trial court's failure to appoint independent counsel to represent the minor child ... at the hearing to determine eligibility for adoption without the parental consent ... constitutes fundamental error. " (Emphasis added).

4 K.D.K. requires us to reverse the trial court's order and remand the case for a new trial. We need not specifically address most of the Womacks' remaining arguments for reversal because they involve examination of the sufficiency of the evidence to support the trial court's order. [FN4] However, we will address the Womacks' argument concerning the appropriate burden of proof because the alleged error is likely to be repeated upon remand.

5 The Womacks contend the trial court erred in finding that they failed to comply with 25 U.S.C. 1912(f) of the federal Indian Child Welfare Act (ICWA), [FN5] arguing that this particular proceeding does not involve removal of an Indian child from an Indian parent or Indian environment. We agree.

6 After considering the purpose of ICWA and certain language within 25 U.S.C. 1912, the Oklahoma Supreme Court held in Matter of the Adoption of D.M.J., 1985 OK 92, 12, 741 P.2d 1386, 1389, that 1912(f) did not apply to an adoption case "in the absence of an attempt to 'break-up the Indian family' or interrupt the 'continued custody' of the child by the Indian parent." Based thereon, the Court affirmed the trial court's determination that ICWA did not apply to the adoption of D.M.J. without her Indian father's consent because she had been in her non-Indian mother's custody since the parents' divorce.

*2 7 In this case, it is undisputed that B.R.W. is an enrolled member of the Choctaw Indian tribe, as is Mr. Womack, and Mother admits she is a non-Indian in her brief. [FN6] Although Mother initially had custody of B.R.W., Mr. Womack has had legal custody of B.R.W. since July of 1998 by order of the Stephens County District Court. As in D.M.J., ICWA did not apply to the Womacks' request to adopt B.R.W. without Mother's consent because they are clearly not attempting to "break-up an Indian family" nor attempting to interrupt the "continued custody" of an Indian child by an Indian parent. The trial court erred when it found that the Womacks failed to comply with 1912(f) of ICWA, which requires a termination of parental rights determination be supported by evidence "beyond a reasonable doubt."

8 The Womacks' request for a determination that Mother's consent is unnecessary is governed by a "clear and convincing" burden of proof. See Matter of Adoption of Darren Todd H., 1980 OK 119, 615 P.2d 287. The trial court's order is reversed, and the case is remanded for a new trial consistent with this opinion.

REVERSED AND REMANDED FOR NEW TRIAL.

JOPLIN, C.J., and BUETTNER, J., concur.

.FN2. Under 7505-4.2(H)(1), consent to an adoption is not required from a parent who "fails to establish and/or maintain a substantial and positive relationship with a minor for a period of twelve (12) consecutive months out of the last fourteen (14) months immediately preceding the filing of a petition for adoption of the child."

.FN5. Section 1912(f) of the ICWA provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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. (Emphasis added.)

The Oklahoma ICWA,10 O.S.2001 40.1 et seq., applies when ICWA applies. See Matter of the Adoption of D.M.J., 1985 OK 92, 741 P.2d 1386.

FN6. The Womacks also point out in their brief that Mother "made no proof of Native American blood." Admissions in an appellate brief are acceptable as material supplementing the record. Deffenbaugh v. Hudson, 1990 OK 37, 791 P.2d 84.

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Supreme Court of Alaska

(Cite as: 2003 WL 22463001 (Alaska))

No. S-10489. Oct. 31, 2003.


In the Matter of the ADOPTION OF KEITH M.W. Native Village of Napaimute Traditional Council, Appellant, v.Terence W. and Lucy W., Appellees.

Voluntary Relinquishment of Parental Rights

OPINION

I. INTRODUCTION

*1 This appeal presents issues arising from an Indian mother's decision to give up her baby and place him with a non-Indian adoptive couple and her later change of heart before entry of the adoption decree. After the mother purportedly relinquished her parental rights, the trial court issued a parental termination order. Despite the decision of the mother's tribe to intervene in this matter, and the fact that the mother subsequently changed her mind about giving up her child for adoption, the trial court found good cause to deviate from the placement preferences detailed in the Indian Child Welfare Act (ICWA) and finalized the adoption by the non-Indian couple. We conclude that the court's termination of the mother's parental rights based on her conditional relinquishment of rights was invalid. And although the mother's relinquishment functioned as a consent to adoption, under ICWA a parent may withdraw consent to adoption for any reason prior to entry of the final decree. But because during the pendency of this appeal the Indian mother reaffirmed her consent to the adoption of her child by the same non-Indian couple, we affirm the superior court's finding of good cause to deviate from ICWA's placement preferences and its issuance of a final decree of adoption.

II. FACTS AND PROCEEDINGS

On May 19, 1999, eighteen-year-old Andrea, a member of the Native Village of Napaimute, gave birth to a son, Keith. [FN1] Because of financial concerns, post-partum depression, and a diagnosis of cervical cancer, Andrea considered putting Keith up for adoption. In early September 2000 Lucy and Terence Wilson, the non-Indian sister and brother-in-law of a friend of Andrea's mother, Jenna, met with Andrea and her extended family to discuss the possibility of adoption. The parties agreed to an "open" adoption, whereby the Wilsons would allow Andrea and Jenna visitation rights. On September 19, 2000, Andrea signed a document in which she claimed to "voluntarily and unconditionally" relinquish her parental rights. But Andrea's relinquishment of parental rights was not "unconditional," as it contained the following statement: "If the adoption is not completed, I understand that this relinquishment will be voided." Thus, Andrea's relinquishment was conditioned on the Wilsons successfully adopting Keith. On October 3, 2000, the superior court issued a "final decree of termination of parental rights."

The Wilsons filed a petition for adoption on October 11, 2000. In mid-December 2000 the Native Village of Napaimute Traditional Council ("the tribe") was permitted to intervene in the adoption proceedings. Prior to the tribe's intervention, Andrea changed her mind and voiced her wish to have Keith returned to her.

After the tribe's intervention, Superior Court Judge John Reese, in an opinion issued in January 2002, found that good cause existed for deviating from the ICWA placement preferences and placing Keith with the Wilsons. The primary basis for the superior court's decision was Andrea's earlier-expressed desire to deviate from the ICWA preferences when she relinquished her parental rights and placed Keith with the Wilsons. The superior court did not account for Andrea's change of preference:

*2 The most obvious [reasons to deviate from ICWA] are, of course, first of all, the mother's preference in the relinquishment and the termination. There's solid legal basis for this in the Indian Child Welfare Act, in the guidelines, as well as in the cases interpreting the act and the guidelines, so that probably is sufficient by itself, but there is more.... [Andrea] gave up [Keith]. That's it. That gets us past the preferences.

We asked for supplemental briefing on a number of issues, including the validity of the relinquishment and the termination order. After supplemental briefing was completed, the Wilsons supplemented the record with a notarized letter from Andrea stating her request that the Wilsons "be able to fully adopt [Keith] without any further interference from myself or any other outside party." We then remanded this matter to the superior court for an expedited hearing and determination of the mother's consent to the adoption of Keith by the Wilsons. At the supplemental hearing on September 9, 2003, Andrea again consented to the adoption. On September 24 the superior court forwarded its report on remand, finding that Andrea voluntarily signed the consent to adoption in open court, that the terms and consequences were fully explained to and understood by her, and that the time for withdrawal of the consent had elapsed.

.IV. DISCUSSION

A. Relevant ICWA Provisions

. 1913's requirement that courts return Indian children to their biological parents if those parents withdraw consent to adopt before issuance of a final adoption decree. While 1913(a) recognizes that a parent may voluntarily consent to termination of parental rights in favor of foster care placement or adoption, [FN6] 1913(c) provides that "[i]n any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent." [FN7]

*3 [3] ICWA further advances its goals by preferring Indian adoptive parents over non-Indian adoptive parents. .factors that may convince state courts that good cause does exist to deviate from the ICWA preferences. [FN10] Although the guidelines are only persuasive and are neither exclusive nor binding, "this court has looked to them for guidance." [FN11] These factors include: (1) the extraordinary physical and emotional needs of the child as established by testimony of a qualified expert witness; (2) the unavailability of suitable families for placement after a diligent search has been completed for families meeting the preferences requirements; and (3) parental preferences in favor of deviation. [FN12] Accordingly, we have held that courts may consider parental preference when determining whether there is good cause to deviate from ICWA preferences. [FN13]

The superior court found that Andrea's initial desire to deviate from the ICWA placement preferences at the time she signed a document purporting to relinquish her parental rights was the primary factor establishing good cause to deviate from the ICWA preferences. The court did not consider the mother's subsequent changed wishes when ruling that good cause existed to deviate from the ICWA preferences. And once the mother's rights were terminated, it is questionable whether she would have standing to state a "parental preference." [FN14] But the question remains whether there was a valid final decree of parental termination in this case that would prevent Andrea from withdrawing her consent to adoption pursuant to 1913(c) of ICWA. The answer to this question hinges on the validity of Andrea's relinquishment of parental rights.

B. Relinquishments Must Be Unconditional.

We have recognized that "[p]arental termination proceedings were unknown at common law. This means that in the absence of statutory authorization there can be no termination of parental rights and obligations." [FN15] One way that a parent's rights may be terminated is through a voluntary relinquishment. Relinquishments are regulated by AS 25.23.180(a) and (b) and may occur "in or before an adoption proceeding." [FN16] It "obviously is permissible in some cases" for relinquishments to occur in the absence of pending adoption cases. [FN17] As we have explained, the relinquishment procedure established by AS 25.23.180(b) "does not contemplate involuntary termination actions, but rather refers to cases in which parents choose to give up their parental rights." [FN18] However, the statute makes no provision for relinquishment of less than all rights. Moreover, the time frames for a parental change of mind are expressly set out in the statute, [FN19] and there is no provision allowing a parent to withdraw the relinquishment after those deadlines if certain conditions have not been met.

*4 Despite its caption as a "relinquishment," the document that Andrea signed in this case was not an unconditional relinquishment; instead, it functioned as a consent to adopt. Andrea did not unconditionally relinquish her parental rights in this case. Indeed, her relinquishment was expressly conditioned on the successful completion of adoption by specified adoptive parents, the Wilsons. Andrea's relinquishment contained the statement: "If the adoption [by the Wilsons] is not completed, I understand that this relinquishment will be voided." Yet Alaska's adoption statute does not recognize a relinquishment of parental rights that is less than an absolute and permanent surrender of rights. Alaska's adoption statute provides that " [a]ll rights of a parent with reference to a child ... may be relinquished and the relationship of parent and child terminated by a writing, signed by the parent." [FN20]

Courts in other jurisdictions have concluded that parents may not relinquish their parental rights on condition that specified adoptive parents be granted the child.

...In summary, a biological parent may not relinquish parental rights conditioned upon successful completion of adoption by specified adoptive parents. Relinquishment requires a permanent and unconditional surrender of parental rights. Consequently, Andrea's initial conditional relinquishment of parental rights was not permitted by statute and was invalid.

C. Andrea's Invalid Relinquishment Functioned as a Consent To Adopt.

[5] Although Andrea's conditional relinquishment of parental rights was invalid in that it was contingent on the successful adoption of Keith by the Wilsons, the document that she filed did function as a consent to adoption. Parental consent "lies at the foundation of the adoption process." [FN43] A parent may consent to adoption by specific adoptive parents, whose identities may or may not be known to the biological parents. [FN44] Under AS 25.23.060, a parent's consent ordinarily delegates to the adoptive parents all powers permitted under AS 13.26.020, including the "powers regarding care, custody, or property of the minor child or ward." [FN45]

*6 While Andrea signed a document purporting to relinquish her parental rights on condition that the Wilsons successfully adopt Keith, [FN46] and while a proper relinquishment eliminates the need for parental consent in an adoption proceeding, we look at the function and not the title of documents to determine their purpose. . The document signed in this case, like that in S.O., was an attempt to consent to a particular adoption. Thus, the superior court's reliance upon it in terminating the mother's parental rights was erroneous.

D. Under ICWA, Andrea Should Have Been Permitted To Withdraw Her Initial Consent to Adoption Prior to Entry of the Final Adoption Decree.

Under ICWA, a biological parent may withdraw consent to adoption "for any reason at any time prior to the entry of final decree of ... adoption ... and the child shall be returned to the parent." [FN53] Because Andrea changed her mind prior to the final decree of adoption and wanted Keith back despite her earlier consent to adoption by the Wilsons, Keith should have been returned to Andrea at the time she withdrew her consent. However, this point is now moot, given that Andrea has reaffirmed her consent to the adoption during the pendency of this appeal.

If we did not treat Andrea's initial conditional relinquishment of parental rights in favor of adoption by a specific couple as a consent to adoption, we would eviscerate a key ICWA provision. The statutory consent provisions provide for a relatively lengthy parental withdrawal period and "are designed to protect the natural rights of a parent to the custody, society, comfort, and services of the child." [FN54] Permitting circumvention of these protections by pre-adoption relinquishment in private party adoption cases would eliminate these protections of parental rights. [FN55] And if allowing such an end run would impair the rights of parents in non-ICWA cases, it would do even greater injury to the rights granted by ICWA to Indian families and the parents of Indian children. Because Andrea has ratified the adoption by reaffirming her consent to have Keith adopted by the Wilsons, we must now turn to the question whether the superior court properly deviated from ICWA's placement preferences.

E. Because Andrea Renewed Her Consent to Adoption by the Wilsons, the Superior Court's Deviation from the ICWA Placement Preferences Was Not Error.

*7 In its initial January 2002 decision approving Keith's adoption by the Wilsons, the superior court found that good cause existed for deviating from ICWA placement preferences and that the adoption was in the best interests of the child. Judge Reese relied on several factors for deviating from the ICWA placement preferences, including Andrea's preference expressed when she purportedly relinquished her parental rights; the open nature of the adoption, which would allow Andrea to visit with Keith and assist the Wilsons in attending to Keith's cultural identity; and the emotional bonding of Keith to the Wilsons. Thus, the findings of the trial court in this case mirror those in F.H., [FN56] where we affirmed the superior court's finding of good cause to deviate from the ICWA placement preferences based on, among other factors, the biological mother's preference for the placement, the bond between the adoptive parent and the child, and the "openness" of the proposed adoption. All of these factors are present in the case now before us.

. On September 9, 2003, Andrea executed a consent to adoption in open court before a superior court master. The superior court waited ten days, the time limit for withdrawal of consent in a non-ICWA case, before reporting to us that Andrea's consent was voluntary, that the terms and conditions of the consent had been explained to Andrea in detail, and that Andrea fully understood this explanation. Thus, Andrea has reaffirmed her initial position in this case, expressed during her purported relinquishment of parental rights: She consents to Keith's adoption by the Wilsons and it is her preference to deviate from ICWA by placing Keith with the Wilsons, a non-Indian family.

The superior court's reliance on Andrea's preference to have Keith adopted by the Wilsons was central to its decision and "was an appropriate factor for the superior court to consider in its finding of good cause." [FN57] As we noted in F.H., "ICWA and the Guidelines indicate that courts may consider parental preference when determining whether there is good cause to deviate from ICWA preferences." [FN58] And although a pivotal factor in this case, it was not the only factor that the superior court took into account in its finding of good cause to deviate from the ICWA preferences.

After the tribe's intervention into the case, the superior court supplemented its findings of good cause by relying on factors other than the mother's preference. These included the open nature of the adoption. As we recognized in F.H., reliance on an adoption structure that will "ensure access" by the biological parent to the child is "a proper factor for the superior court to consider." [FN59] In its consideration of the importance of sensitivity by the adoptive parents in this case to cultural issues, the superior court characterized the open adoption as "a life raft." Although recognizing that the Wilsons "do not understand much about native culture," the court found that "[t]he open adoption offers relief," and that "[r]easonable contact with the birth family can take care of that." The court left open until a future hearing the specifics of the contact schedule, acknowledging that while weekly or even monthly contact was not contemplated, there was a need for "contact that's sufficient and appropriate for [Keith] to know the people who are his birth family as well as ... [have] enough of an exposure to them and enough time with them so that he can come to learn and experience those parts of his culture as well as the parts that the [Wilsons] can provide to him." [FN60]

*8 Finally, the superior court relied on the bonding between Keith and the Wilsons to find good cause to deviate from ICWA's placement preferences. The trial court found that it was "clear" and "not contested" that "[Keith] ha[d] closely bonded to the [Wilsons]" at the time of the October 10, 2001 hearing on the adoption. Two years have elapsed, and that bond has undoubtedly strengthened with time. As we noted in F.H., bonding between the adoptive mother and the child was "a proper factor for the superior court to consider." [FN61]

In sum, the superior court based its determination of good cause to deviate from ICWA's placement preferences on appropriate factors, and we affirm its decision on this issue.

V. CONCLUSION

Andrea's conditional relinquishment of parental rights was invalid. Instead, it functioned as a consent to the Wilsons' adoption of Keith. Although ICWA enables a biological parent to withdraw consent at any time before the finalization of an adoption, in this case, Andrea has reaffirmed on the record her consent to the adoption of Keith by the Wilsons previously ordered by the trial court. Because the trial court did not err in determining that good cause exists to deviate from ICWA's placement preferences, we AFFIRM the court's entry of the decree of adoption and REMAND for a determination of the nature and schedule of contact and visitation as provided in the adoption decree.

MATTHEWS, Justice, concurring.

I agree that the decree of adoption should be affirmed and that it is appropriate for the superior court on remand to address the subject of visitation. I therefore concur in the result of today's opinion. But I disagree with the opinion's conclusion that the final decree of termination is invalid. The natural mother's recent reaffirmation of her desire to have the Wilsons adopt the child has mooted this point in this case. But in future cases the dicta in today's opinion may have the effect of disturbing existing adoptions and adoptive placements and will change Alaska adoption practice. I therefore write separately to express my disagreement. In my view, the adoption decree should have been affirmed even if the natural mother had not, in the eleventh hour of the appeal, ratified the adoption. The discussion that follows is written without taking her ratification into account.

.*9 I disagree. ..The damage that can be done to children by disrupting psychological ties between adoptive parents and children is well recognized. As we stated in Hernandez v. Lambert, "[a]doptive custody results in the rapid development of lasting and powerful psychological ties between adoptive parents and children, especially young children. Once formed, these bonds can seldom be severed without irreparable damage to the child's well being." [FN7]

..I believe that the condition in this case must be construed at all times to be subject to the overriding interest in the welfare of the child. . What it contemplated was that the Wilsons would go forward with the adoption, but if the adoption failed it was understood that they would not stand in the way of the resumption of custody by the natural mother. As so construed, the condition is fully consistent with existing remedies that are available following the failure of a contemplated adoption.

.Our case law reflects the use of conditional relinquishments. . In In re Adoption of F.H. a relinquishment conditioned on adoption by particular prospective adoptive parents was employed. [FN23] An adoption in favor of these prospective parents would have amounted to a deviation from the ICWA preferences. [FN24] The superior court held that the conditional nature of the relinquishment was one reason why good cause existed for deviation from the ICWA preferences, because otherwise there would be much uncertainty concerning the child's future. [FN25] We upheld the court's reliance on the conditional nature of the relinquishment. [FN26]

.The only public policy reason offered by today's opinion for setting aside the relinquishment is in order to "disallow the circumvention of procedures" inherent in the "relatively lengthy parental withdrawal period" allowed for adoptions under the consent track. [FN54] Since the time for withdrawal as a matter of right is exactly the same under state law for relinquishments and consents, what the majority appears to be saying is that the longer periods for withdrawing relinquishments as a matter of right provided by ICWA are desirable as a matter of public policy.

My response to this is that the primary source of public policy employed by this court should be the Alaska Statutes. ICWA must be followed where it applies. But I do not think that ICWA should be regarded as a source for public policy based rulings where the periods it mandates do not apply and differ from the express provisions of Alaska law.

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Superior Court of Connecticut, Judicial District of New London.

(Cite as: 2003 WL 23178008 (Conn.Super.) )
No. K09CP02008567A.

Dec. 19, 2003.

In the Interest of MAKAILA A., a person under the age of eighteen years.

(Termination of Parental Rights)


JONGBLOED, J.

*1 On March 28, 2002, Makaila A.'s maternal grandfather and legal guardian, David S., filed a petition to terminate the parental rights of Veronica A. and Reynaldo A. to their daughter, Makaila, pursuant to C.G.S. 45a-715 et seq., in Probate Court in Colchester, CT. On July 2, 2002, the petition was transferred from Probate Court to the Superior Court for Juvenile Matters at Waterford. On May 1, 2003, following the death of David S., Jeanne K., Makaila's foster mother and co-guardian, was granted leave to adopt the petition.

Respondent mother appeared in court on May 1, 2003 and entered a consent to termination of her parental rights in recognition of her own inability to parent Makaila and in recognition of the outstanding care Makaila received from Jeanne K. and her family. The grounds alleged against respondent father in the termination of parental rights petition were abandonment and no ongoing parent-child relationship.

The trial was held on September 4 and September 29, 2003. The court notes that the child was represented through trial by her attorney. Father, Reynaldo A. was incarcerated at the time of trial. He was present at the courthouse, having been transported for trial pursuant to a writ of habeas corpus, but did not wish to remain in the courtroom. The court finds that notice of this proceeding has been provided in accordance with the provisions of the Practice Book and that father was voluntarily absent during the testimony. [FN1] The Superior Court, Juvenile Matters Division, has jurisdiction over the pending matter. No action is pending in any other court affecting custody of the child.

FN1. The court offered father ample opportunity to discuss his decision to be absent with his attorney and canvassed respondent regarding his decision. The court also offered him the opportunity to obtain transcripts of the testimony, review them with his attorney who was present at all times in court, and reconsider his decision at any point during the testimony if he so desired or changed his mind.

FACTS

The Court makes the following findings, having considered the petition, the probate study for termination of parental rights and adoption (Ex. 9), other documentary evidence, and the testimony of petitioner Jeanne K., legal guardian, Susan B., maternal aunt and Nadine Amanfo, Department of Children and Families ("DCF") social worker. The Court finds that the following facts were established at trial:

The child Makaila was born on November 11, 1994. The child is registered as a member of the Passamaquoddy Tribe of Pleasant Point, Perry, Maine. (Ex. 2.) The Tribe indicated its intention not to participate in these termination proceedings, through a letter from its attorney to the court dated September 4, 2003. Due to mother's issues involving substance abuse, criminal involvement, and her inability to maintain stable housing, Makaila was placed in foster care with Jeanne K. when she was 5 months old. Makaila was returned to father's care almost 2 1/2 years later in February 1997. After mother completed a substance abuse treatment program, mother moved in with father and the child and mother and father married in 1998. In June 1999, following a substance abuse relapse by both parents, mother recognized her inability to care for the child and took the child to maternal grandfather, David S. Maternal aunt, Susan B., agreed to have Makaila live with her family. After approximately two months, however, Susan B. concluded that she was unable to care for Makaila's needs as well as raise her own children, particularly in view of mother and father's active drug use. Makaila was returned to the care of her grandfather, but continued to have contact with her former foster mother, Jeanne K., and often spent weekends and school vacations with the K. family. When grandfather David S. later became seriously ill and unable to care for Makaila, he asked Jeanne K. if she would be willing to resume caring for Makaila. Jeanne K. agreed and was named co- guardian. Makaila moved back into the K.'s home in late May 2002. David S. later died and Jeanne K. now seeks to adopt Makaila.

*2 Respondent father, Reynaldo A., has a significant history of drug abuse and is an addict. He is currently incarcerated, facing charges which include, among others, murder. Respondent father has a criminal history including convictions for sale of crack cocaine for which he was incarcerated in 1994. He was also incarcerated when mother was pregnant with Makaila.

Mother, Veronica A., has struggled with drug addiction for many years. As a result, she has been unable to maintain suitable housing and unable to provide care for Makaila. In recognition of her inability to care for the child, as well as the quality of care provided by the K.s, respondent mother signed a written consent to termination of her parental rights. On May 1, 2003, the court canvassed mother with regard to the consent and accepted it, finding that the consent was given knowingly and voluntarily and that mother had a full and fair understanding of the consequences of her action. [FN2]

FN2. The court certifies that the terms and consequences of the consent were fully explained in detail and were fully understood by mother. The court also certifies that mother fully understood the explanation in English. 25 U.S.C.1913(a).

Visitation

During the time Makaila was with grandfather and Jeanne K., mother and father had extremely limited visitation with Makaila as a result of their active drug use. Mother visited once in November 2000 and once in March 2001. Father's last visit was in July 2000. After father was incarcerated, he wrote to Makaila and requested visitation. When Jeanne K. informed him that she thought visitation in the incarceration setting was not in the child's best interest, he did not pursue his request. Makaila has a limited to non-existent relationship with father since the last time father has had contact with Makaila was in July 2000, well over three years ago. Makaila has reluctantly written to father on occasion with help from Jeanne K. Makaila does not ask to see him.

Makaila, now nine years old, has a very strong emotional bond with her foster family of Jeanne and William K., whom she calls "Mom" and "Dad" and who are her emotional and psychological parents. She lived with the K.s for approximately 2 1/2 years beginning at 5 months of age, and has lived with them again from May 2002 to the present, after maternal grandfather became unable to care for her. Even when Makaila did not live with the K.s, they continued to be involved in her life to the extent that when David S. could no longer care for Makaila, he turned to Jeanne K.

Makaila is extremely well cared for by Jeanne K. and her family, which also includes four siblings. She is happy, healthy and well-adjusted. She participates in numerous extracurricular and sports activities and has many friends in her neighborhood. David S. has provided for Makaila financially such that Makaila will be able to afford to attend college, which the K.s will encourage. Makaila has expressed her emphatic desire to be adopted by the K.s.

DISCUSSION

I. Application of Indian Child Welfare Act "ICWA"

As a member of the Passamaquoddy Tribe, Makaila is an Indian Child within the meaning of the Indian Child Welfare Act, 25 U.S.C.1901, et seq., 1903(4) (1978) ("ICWA"). Thus, ICWA applies and, as set forth in PB 32a- 3(c), "Any child custody proceedings, except delinquency, involving removal of an Indian child from a parent or Indian custodian for placement, shall, in addition, comply with the Indian Child Welfare Act (ICWA)." The Tribe was properly notified of these proceedings and has indicated its intention not to participate. Under ICWA, the party seeking termination of parental rights to an Indian child in a state court proceeding is required to "satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 25 U.S.C.1912(d). In addition, "[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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(f).

*3 The court finds petitioner has established beyond a reasonable doubt [FN3] that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. .

FN3. Unlike section 1912(f), section 1912(d) does not specify the burden of proof by which petitioner must establish that active efforts were made to provide rehabilitative programs designed to prevent the breakup of the Indian family. The court adopts the reasoning and analysis set forth in In re Jessica T., Superior Court for Juvenile Matters at Hartford/New Britain at Hartford (Dec. 28, 1993), in finding that the greater standard of beyond a reasonable doubt applies.

The court also finds that the evidence at trial, including the testimony of a qualified expert witness, established beyond a reasonable doubt that continued custody of Makaila by mother or father is likely to result in serious emotional or physical damage to the child. Mother has acknowledged her own inability to care for Makaila due to severe drug abuse and addiction and mental health needs, and father, who has struggled with severe substance abuse addiction, is incarcerated pending murder charges. Particularly in view of the instability Makaila has had so far in her short life, any continued custody by mother or father is likely to result in serious emotional or physical damage to the child.

In making the required findings under ICWA, the court specifically relies on the testimony of the petitioner's expert witness, Nadine Amanfo, a DCF social worker. Ms. Amanfo has considerable experience and training in cases falling under ICWA and involving numerous tribes, including previous specific experience with the Passamaquoddy Tribe. She has made efforts to ensure that Makaila will continue to receive information regarding her cultural heritage and that she will receive any available services and benefits as a result of her tribal membership.

II. Adjudication Under State Statutes

Having made the findings required under ICWA, the court now proceeds to address the statutory bases for termination under state law. Each statutory basis set out in General Statutes Sec. 45a-717(g) is an independent ground for termination. Under state law, the petitioner is required to prove at least one ground alleged in the petition by clear and convincing evidence. In re Bruce R., 234 Conn. 194, 204 (1995). The Connecticut Supreme and Appellate courts have not addressed the burden of proof by which state law bases for termination must be established in cases arising under ICWA. In reviewing other jurisdictions, it appears that different approaches have been established. At least one court has found that the federal statute preempted state statutes governing termination of parental rights and therefore applied only the federal standards and burdens. In re W.D.H. III, 43 S.W.3d 30, 38 (Tex.App.-Houston 14th Dist.2001). Other courts have adopted a mixed law approach requiring that state statutory grounds for termination must also be found, but must be "supported by evidence beyond a reasonable doubt." In re Interest of R.L.F., 437 N.W.2d 599, 601-02 (Iowa App.1989). The third approach, or a dual law approach, holds that state requirements for termination must be supported by clear and convincing evidence (in accordance with the state statutory standard) and federal requirements must be supported by evidence beyond a reasonable doubt. See K.E. v. State, 912 P .2d 1002, 1004 (Utah App.1996) (and cases cited therein).

..FN4. Of course, in making the required findings beyond a reasonable doubt, the court necessarily finds that the clear and convincing standard has been met.

As to the adjudicatory phase, the court has considered the evidence and testimony related to circumstances and events prior to March 28, 2002, the date upon which the petition for termination of parental rights was filed.

A. Abandonment

. The test for determining abandonment of a child for purposes of termination of parental rights cases is not whether a parent has shown "some interest" in his or her child, but rather, whether the parent has maintained any reasonable degree of interest, concern or responsibility as to the child's welfare. In re Rayna M., 13 Conn.App., 23, 36, 534 A.2d 897 (1987).

B. No Ongoing Parent-Child Relationship

*5 This ground is established when there is no ongoing parent-child relationship with the parent, which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing day-to- day basis the physical, emotional, moral and educational needs of the child and where allowing further time for the establishment of the parent-child relationship would be detrimental to the best interest of the child.

No ongoing parent-child relationship contemplates "a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or [the child] has definitely lost that relationship, so that despite its former existence it has now been completely displaced." In re Juvenile Appeal ( Anonymous ), 181 Conn. 638, 645-46 (1980); In re John G., 56 Conn.App. 12, 22, 740 A.2d 496 (1999). In any case, "the ultimate question is whether the child has no present memories or feelings for the natural parent." In re Juvenile Appeal, (Anonymous), 177 Conn. 648, 670 (1979). The mere recognition of an individual as a parent will not defeat this ground. In re Juvenile Appeal (84-6), 2 Conn.App. 705, 708- 09 (1984), cert. denied, 195 Conn. 801 (1985). The presence or absence of positive feelings on the part of the child is determinative. In re Shane P., 58 Conn.App. at 240.

In the adjudicatory phase, the petitioner must establish (1) that no ongoing parent-child relationship exists; and (2) that the allowance of further time for the establishment of such a relationship would harm the interests of the child. In re Jonathan G., 63 Conn.App. 516, 525 (2001).

The Court finds beyond a reasonable doubt that there is no ongoing parent- child relationship between Makaila and respondent father. .Certainly Makaila would not recognize Reynaldo A. as a parent in that she would not seek comfort from him or go to him to have her needs met. Makaila does not speak of her father, or express a desire to see him. She does not discuss any present positive memories of her biological father who has remained incarcerated. As set forth above, mere recognition of an individual as a parent will not defeat this ground. In re Juvenile Appeal (84-6), 2 Conn.App. at 708-09.

.*6 The court further finds beyond a reasonable doubt, that to allow respondent father further time for the establishment of a parent-child relationship with Makaila would be detrimental to the best interest of the child. Makaila is now 9 and is in the same wonderful home where she has lived for much of her life.

.III. Disposition

As to the dispositional phase of this hearing on the petition for termination of parental rights, the court has considered the evidence and testimony related to circumstances and events up to and including September 19, 2003, the date upon which the evidence in this matter was completed.

*7 (4) As to the age of the child, the court finds that Makaila was born on November 11, 1994 and is now 9 years of age.. (6) As to the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent, the court finds that no unreasonable conduct by the guardian or third parties is noted. The court also finds that neither parent prevented the other from maintaining a meaningful relationship with the child. Respondent father's own conduct remains the principal reason he has no relationship with Makaila. Further, while respondents' economic means may have been limited, economic factors did not prevent regular, continuing contact with either the child or the guardian.

With respect to the best interest of the child contemplated by General Statutes 45a-717(g), based upon all of the foregoing, the court finds beyond a reasonable doubt that termination of the parental rights of Veronica A. and Reynaldo A. to Makaila A. is in the best interest of the child. .

*8 Therefore, based upon the totality of the testimony and evidence presented, it is in the best interest of Makaila to terminate the parental rights of Veronica A. and Reynaldo A. at this time.

It is accordingly, ORDERED that the parental rights of Veronica A. and Reynaldo A. are hereby terminated as to the child, Makaila.

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Court of Appeals of Minnesota

(Cite as: 2004 WL 78031)
No. A03-811.

Jan. 20, 2004.

Roy E. GERBER v. Phyllis EASTMAN

Child Custody Proceeding, defined

GORDON W. SHUMAKER, Judge.

OPINION

On appeal in this custody dispute between appellant-Indian- custodial grandmother and respondent-non-Indian-father, grandmother challenges the district court's determinations that (1) the Indian Child Welfare Act does not apply where a non-Indian father seeks permanent custody of his biological child; (2) the district court has continuing, exclusive jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act where the district court initially granted custody to grandmother; and (3) the child's mother is not an indispensable party who must be joined in this proceeding.

FACTS

The parties do not dispute the underlying facts in this case, which arise out of a proceeding in state district court for a child in need of protective services (CHIPS). The minor child, I.E., was born in 1999 to Joy Eastman, an Indian member of the Red Lake Band of Chippewa Indians, and respondent Roy Gerber, a non-Indian. I.E. lived with her mother when she was born, but was placed in foster care in February 2000 because of Joy Eastman's mental illness and her inability to care for the child. After reunification efforts failed, the county placed I.E., in September 2000, with her maternal grandmother, appellant Phyllis Eastman, who is a member of the Red Lake Band of Chippewa Indians and who lives on the reservation. Joy Eastman now resides in a traumatic brain injury group home in Duluth.

After I.E. was placed in foster care, the county contacted respondent, who first became involved in I.E.'s life in March 2001. On appellant's motion in state district court for permanent custody of I.E., the court, in July 2001, granted permanent sole legal and physical custody of I.E., an Indian child, to appellant.

In March 2003, respondent filed a motion in district court for a modification of custody, seeking sole legal and physical custody of I.E. The court granted respondent an evidentiary hearing, at which appellant did not appear, and granted respondent some parenting time with I.E. Appellant did not allow respondent to exercise his parenting time, and the police on the reservation declined to enforce the district court's order. Ultimately, the county sheriff's office assisted respondent in obtaining I.E. one time during his specified parenting time when appellant took I.E. off of the reservation.

*2 The Red Lake Tribal Court issued an order noting that appellant had custody under the district court's July 2003 order and recognizing the permanent custody placement, stating that the order had been entered when I.E. was living outside of the reservation. But the tribal court then determined that it had current exclusive jurisdiction over all present and future issues relating to I.E.'s custody, care, and visitation because the child has been living on the reservation with her grandmother since September 2000.

The state district court determined that the Federal Indian Child Welfare Act (ICWA) does not apply where a non-Indian biological father seeks custody of his own child and the state district court exercised continuing exclusive jurisdiction under Minnesota's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Appellant now challenges the district court's determination that the ICWA does not apply and the court's exercise of exclusive continuing jurisdiction.

ISSUES

1. Does the federal Indian Child Welfare Act apply when a non-Indian father seeks permanent sole legal and physical custody of his biological child after the state district court has granted permanent sole legal and physical custody to the child's Indian maternal grandmother who resides with the child on the reservation?

2. Did the district court err in determining that it had continuing, exclusive jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act?

3. Is the biological mother of the minor child an indispensable party who must be joined in this action, where the mother has no custodial or parenting time rights as a result of her mental illness and possible traumatic brain injury?

ANALYSIS

A reviewing court is not bound by and need not defer to a district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minn. Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984). Jurisdiction is a legal issue, which this court reviews de novo. Podvin v. Jamar Co., 655 N.W.2d 645, 648 (Minn.App.2003). Interpretation of a statute is also a legal question, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). I

Appellant first argues that this case involves a child custody proceeding and, therefore, the federal Indian Child Welfare Act (ICWA), 25 U.S.C. 1901-1963 (2002), applies and vests jurisdiction in the tribal court.

Congress enacted the ICWA in 1978, 25 U.S.C.1901, because of a growing concern that Indian children were being placed in non-Indian foster and adoptive homes, which deprived them of their unique culture. Sayers by Sayers v. Beltrami County, 481 N.W.2d 547, 549-50 (Minn.1992). Congress intended that the ICWA recognize the tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 35-36, 109 S.Ct. 1597, 1601, 104 L.Ed.2d 29 (1989). The purpose of the ICWA is to protect the best interests of Indian children and to preserve stability of the Indian tribe and family by preventing adoption of Indian children by non-Indians where placement in an Indian family is possible. Desjarlait v. Desjarlait, 379 N.W.2d 139, 144 (Minn.App.1985), review denied (Minn. Jan. 31, 1986).

*3 To determine whether the ICWA applies, it must first be established that the Indian child is the subject of a "child custody proceeding," as that term is defined in the ICWA. In re Welfare of S.N.R., 617 N.W.2d 77, 80 (Minn.App.2000), review denied (Minn. Nov. 15, 2000). Under the ICWA, a child custody proceeding is limited to foster-care placement, termination of parental rights, pre-adoptive placement, and adoptive placement. 25 U.S.C. 1903(1) (2002).

In this case, appellant argues that the proceeding involves a foster-care placement, which the ICWA defines as any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.

Id. (emphasis added). Under this definition, appellant contends that this case involves a child custody proceeding because, by having permanent custody of I.E., she is an Indian custodian under the ICWA and cannot have I.E. returned to her upon demand if respondent is granted permanent custody.

Appellant relies primarily on the Minnesota case of In re Custody of A.K.H., 502 N.W.2d 790 (Minn.App.1993), review denied (Minn. Aug. 24, 1993), for the proposition that the ICWA applies to this intra-family custody proceeding. In A.K.H., we held that the ICWA does not explicitly exclude intra-family custody disputes and, therefore, a child's Indian tribe had a statutory right to intervene in a custody proceeding between the parents and a grandparent. Id. at 791. In so holding, we outlined the four prongs of the ICWA that define foster-care placement: (1) removing the Indian child from the child's parent or Indian custodian; (2) temporarily placing the child in a "foster home or institution or the home of a guardian or conservator" where; (3) the parent or Indian custodian cannot have the child returned upon demand; and (4) parental rights have not been terminated.

Id. at 792. We determined that the first, third, and fourth prongs had been met, and then analyzed the second prong to determine whether the grandmother could be considered a guardian or conservator. Id.

In A.K.H., all of the parties were enrolled members of an Indian tribe and the minor child had resided with her maternal grandmother for most of her life. Id. We determined that, under the ICWA, the grandmother's home must be considered the home of a guardian or conservator. Id. at 793. Therefore, because the four prongs defining foster-care placement were met, A.K.H. involved a child custody proceeding as defined in the ICWA. Id. Only after determining that A.K.H. involved a child custody proceeding did we broadly state that the ICWA applies to an intra-family custody dispute where all interested parties are enrolled members of an Indian tribe. Id.

*4 In this case, the ICWA does not apply because, unlike A.K.H., there is no "child custody proceeding," as that term is defined in the ICWA. This case does not involve "a temporary placement in a foster home or institution or the home of a guardian or conservator." See 25 U.S.C. 1903(1) (2002) (defining "foster-care placement"). The placement here would be to return the child to the custody of her parent and not to place her temporarily into a "foster home or institution or the home of a guardian or conservator," as defined in the ICWA. See id.

We also decline to adopt appellant's assertion that our holding in A.K.H. should apply to all intra-family disputes, even if the biological parent is seeking custody. A parent is considered a natural guardian. See Illinois Farmers Ins. Co. v. Reed, 662 N.W.2d 529, 530 (Minn.2003). However, the term "natural guardian" does not appear in the ICWA, and the plain language of the statute indicates that the ICWA does not apply where a parent is seeking to regain custody. The ICWA section that defines foster-care placement uses the term "parent" twice, but not in reference to a temporary placement in a foster home, institution, or home of a guardian or conservator. And, in considering Congress's policy reason for enacting the ICWA, that Indian children placed for adoption be placed with Indian families to preserve the Indian tribe and family, we cannot conclude that the ICWA was enacted to apply to a case where a non-Indian biological "parent" is seeking to regain custody from an Indian custodian. Because this case does not involve a foster-care placement, the Indian child I.E. cannot be the subject of a child custody proceeding as defined in the ICWA. Therefore, the ICWA does not apply.

Appellant also argues that the tribal court has exclusive jurisdiction and is not subject to Minnesota's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Minn.Stat. 518D.101-317 (2002). Therefore, appellant contends that the tribal court's ex parte order declaring the tribal court's exclusive jurisdiction is entitled to full faith and credit. Appellant relies on section 1911 of the ICWA, which requires Minnesota courts to give full faith and credit to the tribal court's custody order "to the same extent that such entities give full faith and credit to the ... judicial proceedings of any other entity." 25 U.S.C. 1911. Because the ICWA does not apply, however, the UCCJEA governs the current proceedings.

The UCCJEA instructs Minnesota courts to "treat a tribe as if it were a state of the United States for the purpose of applying sections 518D.101 to 518D.210," which deal with interstate child custody determinations or disputes. Minn.Stat. 518D.104(b). Under certain circumstances, the UCCJEA grants jurisdiction to a Minnesota state court to make an initial child custody determination. Minn.Stat. 518D.201(a) (2002). A tribal court may also make a child custody determination under the UCCJEA. Minn.Stat. 518D.104(c). However, the tribal court did not do that here.

*5 In this case, the district court made an initial custody determination in July 2001 and granted sole legal and physical custody to appellant. At that time, Minnesota had jurisdiction to make an initial child custody determination under Minn.Stat. 518D .201, and appellant did not dispute the state district court's jurisdiction. Under Minn.Stat. 518D.202, the state district court had exclusive, continuing jurisdiction over its initial custody determination.

Appellant incorrectly relies on In re Custody of K.K.S., 508 N.W.2d 813 (Minn.App.1983), for the proposition that the district court should decline jurisdiction, if it determines that it is an inconvenient forum and the tribal court is a more appropriate forum. In K.K.S., the minor child had lived on the reservation with her Indian mother for three years when her father, a non- Indian, took the child from the reservation without the mother's consent. Id. at 814. The father sought temporary custody in state district court, alleging child endangerment. Id. After the tribal court asserted jurisdiction, the district court declined jurisdiction. Id. at 815. This court held that, because the child was born on the reservation, the controversy arose on the reservation, the child lived on the reservation, the father removed the child from the reservation without permission, and the father admitted that he fled the tribal court's jurisdiction, the district court had concurrent jurisdiction with the tribal court and did not err in dismissing the case when the tribal court exercised its jurisdiction. Id. at 815-16.

K.K.S. thus involved an initial custody determination and a father who admittedly fled the tribal court's jurisdiction, and this court did not want to encourage "kidnapping" by exercising jurisdiction. Id. Here, however, the district court already had jurisdiction based on the initial custody ruling, which appellant never challenged. Because the current modification is a continuation of the initial custody ruling and all parties initially subjected themselves to the district court's original jurisdiction, we conclude that the district court properly exercised continuing, exclusive jurisdiction under the UCCJEA.

Appellant finally argues that I.E.'s biological Indian mother is an indispensable party who must be joined in this action. The district court did not address this issue, although appellant raised it in her memorandum in support of her motion to dismiss.

Minn.Stat. 518.156, subd. 2 (2002), states that "[w]ritten notice of a child custody ... proceeding shall be given to the child's parent, guardian, and custodian." Here, the mother has no parenting or custodial rights as a result of the initial CHIPS proceeding, which removed the child from her mother's home because of the mother's mental illness and possible traumatic brain injury and granted permanent sole legal and physical custody to appellant. Accordingly, the mother is not an indispensable party.

DECISION

*6 The district court properly determined that the ICWA does not apply and that it had continuing, exclusive jurisdiction under the UCCJEA. Additionally, the biological mother is not an indispensable party to the proceedings.

Affirmed.

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Are our children chattel for tribal government?

Maria Charles, 4 years old, has known only one father her whole life. Wayne Hawkins has taken care of her from the time she was 27 hours old.

According to Hawkins, "She was born into adversity. She overcame drug addiction at way too young of age. She's overcome a tremendous amount of roadblocks to get where she is at. Why would anybody want to take that kind of success away from a child? It makes no sense."

But someone does. Although Hawkins estimates she is only 1/32 Chippewa Cree and is more Hispanic than Indian, the Rocky Boy Tribe has come to claim her, and the State of Montana has decided to allow them to. Tribes have the right to define what percentage of blood qualifies for membership. Most say a quarter; some go down to 1/64. ICWA pertains to any child the tribe deems enrollable. Thus, ICWA leaves up to 3/4 or more of the child's non-Indian heritage ignored.

According to Shirley Tiernan of the Montana Child and Family Services Division, "Whether we think it is a good idea or not is immaterial; every state has to obey the Indian Child Welfare Act." According to 25 USC 1911, "... the Indian tribe shall retain exclusive jurisdiction..." and "...the (State) court, in the absence of good cause to the contrary, shall transfer... to the jurisdiction of the tribe..."

Noting the reference to "good cause" , Hawkins isn't about to give up. With three other children in the house and a new mother waiting in the bridal wings, Marie is a happy, well-adjusted little girl. Hawkin's adoption of her would have been final in October had the tribe not stepped in at the 11th hour. He believes that' s good cause to prevent transfer of jurisdiction, so on Jan. 10th, he's taking the issue to Federal Court in Billings.

Unfortunately, in 1994, the Minnesota Supreme Court rejected a white couple's petition to adopt three Ojibwe sisters. The court held that non-Indian families may adopt Indian children if they prove there is "good cause", but good cause can't be based on "a European value of family permanence".

According to West's Encyclopedia of American Law, "ICWA...intended to limit the historical practice of removing Native American children from their tribe and family and placing then in a non-Indian family or institution. The stated purpose of the act is to "protect the best interests of Indian Children and to promote the stability and security of Indian tribes." The act seeks to achieve these goals through...federal standards for (the removal of Indian children); ...placing children...in a...home that reflects the unique values of Indian culture; and by providing assistance to (tribal family services)."

Deborah Maddox, Acting Director of the BIA Office of Tribal Services in 1993, said, "(ICWA) seeks to protect the rights of the Indian child as an Indian and the rights of the Indian Community and Tribe in retaining its children in its society."

The original purpose of ICWA was well-meaning. Historically, there was a lot of pain related to the forcible separation of children from traditional family homes on the reservation, just as there is pain when children are separated from any family, anywhere. Children are always more comfortable in a familiar setting. However, ICWA, as written, is based on assumptions. The first assumption is that values within the Indian culture are unique, and the culture of non-Indian relatives is of less value. The second assumption is that all families and individuals of Native American heritage think, feel and desire the same things, and any person with a small amount of heritage is automatically better off within the Indian community. The third assumption, that the tribe can retain "its" children, supposes the tribe has sovereign ownership of individuals.

Questions of jurisdiction have resulted in several Court interpretations that have made ICWA even more threatening to the rights and preferences of the individual. In 1989, in a case called Mississippi Band of Choctaw Indians v. Holyfield, the US Supreme Court declared that Congress had enacted ICWA to protect Native Americans, and thus tribal jurisdiction preempted both state authority and the wishes of parents. The Court concluded an Indian tribe and an Indian child have an interest in maintaining ties independent of the interests of birth parents, and thus, "Congress determined to subject (voluntary) placements to the ICWA's jurisdiction ...because of concerns going beyond the wishes of individual parents."

While ICWA squashes parental rights, parents are still the vehicle toward tribal control. Two twin girls had been with their adopted parents in Ohio since birth in 1993. At the time, the birth father wasn't a tribal member and didn't acknowledge any Indian ancestry. Later, he invoked his 3/32 Pomo heritage to gain custody. The final settlement stipulated the girls could stay with their adoptive parents, but have to be taken to visit the Pomo Rez. in California every other year.

Peter W. Schramm, of the John Ashbrook Center for Public Affairs, writes, "The (ICWA) is symptomatic of a dangerous and growing trend - especially in adoption cases - in which race and culture trump individual rights. Cultures, tribes and groups do not have rights in America. But individual rights are at the heart of America's founding, embodied in the Declaration of Independence and the U.S. Constitution."

Kayla, a fifth grader raised by her non-tribal aunt since she was 8 months old, wanted to stay in the only home she ever knew. But in 1994, the North Dakota Standing Rock Sioux Tribe sued. According to Allen G. Breed, of the Associated Press, "Kayla's case illustrates the conflict between one child's wishes and a people's destiny." And Steve Moore, Staff Attorney with Native American Rights Fund, stated (There are) "competing factors that come into play" (in Indian child custody battles) "the bottom line is Indian children are the lifeblood of Indian tribes as a population base diminishes due to these cases."

These comments only increase rhetoric. "A people's destiny"? Should people be forced to be "the lifeblood" if that is not what they want for their lives?

Exclusive jurisdiction by the tribe is scary enough for many foster and adoptive parents, but imagine how it feels for birth parents, both tribal and non, that have chosen to raise their children outside of the tribe. If these parents should unexpectedly die, ICWA requires that "the prevailing social and cultural standards of the Indian community in which ...extended family resides..."be applied in placement preferences." 25 USC 1915(d). There is no other race in the United States who are denied parental right of choice in this way.

For some of these parents, the question arises, " What is referred to by social and cultural standards?" If it is referring to traditional Indian Spirituality, parents in the United States are supposed to have Freedom of Religion. Although the Bill of Rights doesn't always apply to members on the reservation; no government should have the right to dictate which religion is best for children. Traditional Indian Spirituality should not be forced.

If it is traditional culture that is being referred to, such as language and food gathering methods, many elders, but fewer young people, practice these on the reservations today. Many teenagers are simply not interested enough to work at the language, and few honor ancient ways of hunting, fishing or harvest that was traditionally considerate and took only what was needed for the family. Does social and cultural standards refer to a romantic image or reality?

There is still interest in art and craftwork, both traditional and modern approaches, but this interest in Indian art crosses racial lines and is enjoyed all over the world.

Furthermore, sadly, the current and factual cultural and social standards of the reservation include promiscuity, unwed pregnancies, drug and alcohol abuse, crime, gang activity, shootings, violence in and out of the homes, child abuse, and child neglect. On top of all that, there is epidemic corruption within many tribal administrations. And yet Congress mandates that social and cultural standards of the reservation be applied.

This is not to say that there are no tribal members that practice traditionally. There are. And this is not to say that there are no good homes on the reservation. There are. And this is not to say that the reservation is alone in problems of alcoholism and corruption. All of these problems are found in any neighborhood, anywhere. But the problem is that federal government is commanding certain children be raised under certain, racially dictated conditions, based on faulty assumptions.

Even Republicans, who have rebutted the Clinton's for socialist stands, and have made issue over the phrase "It takes a village to raise a child", support ICWA. Originally, the "village" was a society that agreed as a group on issues of daily living, including their values, discipline, and spirituality. That is not the case in our country, whether on or off the reservation, and most families do not want strangers taking part in private family affairs. However, despite this, Sen. McCain, R-AZ, in effort to make tribal government and adoption agencies happier, is pushing to make ICWA even more intrusive to family members. According to his Sec. 114 of S. 1213, "a person, other than the birth parent of the child, shall ... be subject to a criminal sanction...if that person knowingly...covers up a material fact concerning whether a child is an Indian child".

In other words, a grandmother that chooses to keep her heritage private will become a criminal, subject to fine or even imprisonment.

Tribal governments, of course, get more money for every head residing on the reservation. The BIA needs the tribes to retain their children in order that the BIA may continue to exist. Is it a financial stake, and not cultural, that's the reason for the mandates of ICWA?

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Roland J. Morris's Story     Standing Up to Be Counted

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