Footnote in Indiana Court of Appeals Child Welfare Case

This case is also unreported, and not notable for any ICWA holding except for footnote 4, which highlights how ICWA is USUALLY challenged:

4 Again, DCS alleges Parents have waived this issue for failure to raise it below. Parents did argue to the juvenile court during closing argument that the standard of proof should be beyond a reasonable doubt. See Tr., Vol. 2 at 95. They did not, however, offer any basis for that assertion, least of all a state or federal constitutional basis. As DCS points out, in order to properly preserve an issue for appeal, “[a]t a minimum, a party must show that it gave the trial court a bona fide opportunity to pass upon the merits of the claim before seeking an opinion on appeal.” Endres v. Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004). The juvenile court did not have that opportunity below.


Although we consider Parents’ state due process claim notwithstanding waiver for the same reason we exercised our discretion to decide the jury trial issue, supra n.2, we decline to consider the waived federal equal protection claim. Parents’ equal protection argument is based on the fact that the Indian Child Welfare Act provides that parental rights of Native Americans may be terminated only upon evidence beyond a reasonable doubt. See 25 U.S.C. § 1912(f). The right to a jury in juvenile proceedings and the scope of the state due process clause are matters of settled law in Indiana. But Indiana courts have not had occasion to consider whether the differing state and federal standards violate equal protection, and we will not undertake that analysis when it was not developed at all in the juvenile court and is raised for the first time on appeal.

Waiver notwithstanding, we note that the United States Supreme Court has routinely rejected claims that laws that treat Native Americans as a distinct class violate the equal protection rights of non-Native Americans, see, e.g., United States v. Antelope, 430 U.S. 641, 646 (1977) (concluding “federal regulation of Indian affairs is not based upon impermissible classifications”), and states that have had occasion to consider whether their clear and convincing standard violates the equal protection clause have found no violation, see, e.g., Matter of M.K., 964 P.2d 241, 244 (Okla. Civ. App. 1998) (holding heightened burden of proof required for termination of Native American parental rights is “rationally tied to Congress’ responsibility for policy toward [Native American] families” and lower state standard did not violate non-Native American father’s right to equal protection).

In other words, the Non-Native parents would like to have the same protections ICWA provides Native families.