Transfer to Tribal Court Case from Colorado [ICWA]

Here is a case that continues to demonstrate the importance of ensuring a state ICWA law allows transfer of cases post-termination. Navajo Nation intervened and appealed the decision to deny transfer (and to move the children back to the former, non-ICWA compliant foster home, who opposed the transfer to tribal court).

Additional important issues in this case including the appealability of a final order, standing of former foster parents (they had none), and post-termination transfer to tribal court.

We acknowledge that ICWA only addresses a request to
transfer jurisdiction during foster care placement and termination of parental rights proceedings. 25 U.S.C. § 1911(b). It does not mention such a request during preadoptive or adoptive placement proceedings. See id. Even so, the Children’s Code, as it existed at the time the juvenile court denied transfer, permits a juvenile court to consider transfer of jurisdiction to a tribal court “[i]n any of the cases identified in subsection (1) of this section involving an Indian child.” § 19-1-126(1), (4)(a). The cases identified in subsection (1) include “pre-adoptive and adoption proceedings.” § 19-1-126(1).

Active Efforts and Transfer to Tribal Court Case out of Maine [ICWA]

Here.

This is a difficult case, but the opinion does a nice job of outlining how a state and Tribe can work together in a state court ICWA case to provide active efforts when reunification with the father would be essentially impossible (based on the facts provided). The Court also correctly identifies legal standards involved with the father’s attempt to transfer the case to tribal court.

South Dakota Supreme Court Denies Transfer to Tribal Court [ICWA]

Here

The Tribe requested transfer and the child’s attorney objected. The trial court did not allow testimony regarding bonding and attachment from the child’s doctor. The Supreme Court held

With or without the 2016 regulations, though, circuit courts need the benefit of a sufficiently developed record to assist in the good cause determination. See A.O., 2017 S.D. 30, ¶ 13, 896 N.W.2d at 656; In re M.C., 504 N.W.2d 598, 601 (S.D. 1993). In both A.O. and M.C., we held that the circuit court should have conducted an evidentiary hearing before determining the motion to transfer jurisdiction. In the absence of a developed record, we are unable to conduct meaningful appellate review concerning the merits of the parties’ claims.

[¶17.] As it relates to this case, we conclude that the circuit court abused its discretion when it granted the Tribe’s motion to transfer without hearing the testimony of the child’s physician who was present in the courtroom. Relying upon the impromptu offer of proof by Child’s counsel, the court determined that Dr.
Whitney’s testimony was categorically irrelevant. We disagree.

The Court reversed and remanded for an evidentiary hearing.

 

Transfer to Tribal Court Decision from Maine Supreme Judicial Court

Here

[¶1] Shirley T. and David W. appeal from an order of the District Court (Portland, Powers, J.) denying their and the Oglala Sioux Tribe’s motions to transfer jurisdiction of this child protection matter to the Oglala Sioux Tribal Court pursuant to the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.S. §§ 1901-1963 (LEXIS through Pub. L. No. 115-277). Shirley T. and David W. challenge the court’s determination that there is good cause within the meaning of ICWA not to transfer the matter to the Tribal Court. We affirm the court’s denial of the motion to transfer jurisdiction.

The Court essentially used an inconvenient forum analysis, based on the Regulations, Guidelines and numerous other state court opinions.

Transfer to Tribal Court Case out of the Ohio Court of Appeals

Here.

This is a procedurally complicated case, with a hostile GAL. The conclusion of the appellate court is disappointing:

It is not for this court to decide where and with whom C.J., Jr. should live. However, we have been asked to decide the legal question of who should make the custody determination concerning this child. Based on the foregoing, that decision should be made by the Ohio court after a full evidentiary hearing taking into account the best interests of C.J., Jr., any competing interests of the other parties to this litigation, and the full participation of GRIC. Whether the trauma that might result from removing C.J., Jr. from the only home he has known since he was two years old should outweigh the interest of GRIC in having him transported across the country and raised as part of the GRIC must be determined with all the wisdom, compassion, and experience of the juvenile court.

This article has quotes from the tribal attorney in the case.

Arizona Supreme Court Decides ICWA Transfer Case

Opinion here: Gila River Indian Community v. Dept. of Child Safety, Sarah H., Jeremy H., A.D.

This case was originally the In re A.D. case, the same A.D. who was the Goldwater Institute’s named plaintiff in Carter (A.D.) v. Washburn (now on appeal to the 9th Circuit). The Goldwater Institute represented the foster parents in this case in the Arizona state court appeals process.

The court of appeals decision denied the transfer to tribal court issue on the question of whether 25 U.S.C. 1911(b) allows transfer of post-termination proceedings. The Arizona Supreme Court also upheld the denial of transfer to tribal court, but walked back some of the more troubling aspects of the court of appeals opinion. Specifically,

Although the court of appeals correctly held that § 1911(b) did not apply here, that court was mistaken in stating that ICWA does not “allow” the transfer of actions “occurring after parental rights have terminated[.]” Gila River Indian Cmty., 240 Ariz. at 389 ¶ 11. By its terms, § 1911(b) provides that a state court must transfer foster care placement or termination-of-parental-rights cases to tribal court unless the state court finds good cause for retaining the case or unless either parent objects to the transfer. Section 1911(b) is silent as to the discretionary transfer of preadoptive and adoptive placement actions, but we do not interpret that silence to mean prohibition. See Puyallup Tribe of Indians v. State (In re M.S.), 237 P.3d 161, 165 ¶ 13 (Okla. 2010) (“Reading what is contained in the statute . . . does not require us to read into the statute what is not there, i.e., that transfers may only be granted if requested before a termination of parental rights proceeding is concluded.”) (emphasis omitted).

When enacting ICWA, Congress recognized, rather than granted or created, tribal jurisdiction over child custody proceedings involving Indian children. See Holyfield, 490 U.S. at 42 (“Tribal jurisdiction over Indian child custody proceedings is not a novelty of the ICWA.”); Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,821–22 (June 14, 2016) (codified at 25 C.F.R. pt. 23) [hereinafter 2016 BIA Final Rule] (noting that Congress, in enacting ICWA, recognized that inherent tribal jurisdiction over domestic relations, including child-custody matters, is an aspect of a “Tribe’s right to govern itself”); Cohen’s Handbook of Federal Indian Law 840, 842 (Nell Jessup Newton et al. eds., 12th ed. 2012) (“Before the passage of ICWA, tribes exercised jurisdictional authority over custody of their children,” and § 1911(b) “reflects the legislative compromise made when states and others resisted tribes’ exercise of exclusive jurisdiction over all Indian child custody proceedings.”) (emphasis added).

¶21 Thus, tribes have the inherent authority to hear child custody proceedings involving their own children. By enacting ICWA, Congress recognized that authority and clarified the standards for state courts in granting transfer requests of certain types of cases. As a result, although ICWA does not govern the transfer of preadoptive and adoptive placement actions, state courts may nonetheless transfer such cases involving Indian children to tribal courts.

***

Finally, contrary to the court of appeals and the foster parents’ arguments, we decline to rely on waiver as a basis for affirming the denial of the Community’s transfer motion. See Gila River Indian Cmty., 240 Ariz. at 391 ¶ 18. The Community did not expressly waive its right to seek transfer; thus, the only waiver here would be implied because the Community did not seek transfer until after parental rights were terminated. However, “[t]o imply a waiver of jurisdiction would be inconsistent with the ICWA objective of encouraging tribal control over custody decisions affecting Indian children.” In re J.M., 718 P.2d 150, 155 (Alaska 1986) (emphasis omitted). Moreover, courts have historically been reluctant to imply a waiver of Indian rights under ICWA. Id.; cf. In re Guardianship of Q.G.M., 808 P.2d 684, 689 (Okla. 1991) (“Because of the ICWA objective to ensure that tribes have an opportunity to exercise their rights under the Act, and because of the plain language of § 1911(c), a tribe’s waiver of the right to intervene must be express.”).

However, the general rule remains (in states without state ICWA laws on point) –transfer petitions made after termination of parental rights will likely remain more difficult to achieve than those made before.

South Dakota Supreme Court Overturns Denial of Transfer to Tribal Court

Here.

We agree that the court’s denial of the request to transfer was improper. It is undisputed that the circuit court refused to hold a separate evidentiary hearing on the question of good cause. And the court’s commentary on the issue during the December 14, 2015 review hearing consists only of the following:

Well, it’s going to be the Court’s finding that the motion to transfer is not timely and it’s going to be denied in this case. I note this case is—was open last November, 2014. The [T]ribe’s apparently been aware of it for more than a year. No efforts were made to get it transferred before this time, and I—my real concern is, it just is contrary to the interests of the children to start over from square one after a year has proceeded in the matter, so that motion is going to be denied.

As noted above, in determining whether the motions to transfer were timely, the court was required to consider all the particular circumstances of this case, not simply the amount of time that had passed since the proceedings first began. See id. at 600. Although this case was over one year old, it had not yet reached final disposition. Without knowing the Tribe’s and Mother’s reasons for waiting to seek transfer, the circuit court necessarily did not consider all the circumstances of this case.

The court’s finding that transferring jurisdiction was not in the best interest of the Children is susceptible of the same criticism. As above, the absence of specific factual findings precludes meaningful review. The Tribe intervened and has been involved in this case since nearly its beginning. The Tribe has been represented at each of Mother’s review hearings. The circuit court did not identify any reason to conclude that transferring jurisdiction to the Tribe would have amounted to a “start over from square one[.]”

Oklahoma Court of Appeals Case Granting Transfer to Tribal Court

Here. And the OK Supreme Court agreed to publish the decision. 

This case involved a guardianship:

ICWA defines “foster care placement” 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.'”25 U.S.C. 1903(1)(i). This guardianship case is governed by this definition of foster care placement because Mother cannot have her children returned on demand as shown by the fact that she requested that the guardianship be terminated and her request was denied.

The case also discusses the requirement of clear and convincing evidence to deny transfer. The trial court denied transfer stating it was the advanced stage of the proceedings–which it was because Cherokee Nation didn’t receive notice, and the delay was beyond the Nation’s control.

This is only the 16th time an appellate court reversed the lower court and ordered transfer. This is one of two from this year.

Important ICWA Case Out of Oklahoma on Application and Transfer to Tribal Court

Here. This is a long post, but there’s some data at the end! The Oklahoma Supreme Court wins favorite sentence in an ICWA case of 2016:

“Appellants’ [State of Oklahoma and foster mother] unlearned understanding of what is binding case law and attempts to broaden holdings of this Court, the United States Supreme Court [Adoptive Couple v. Baby Girl], and the Tenth Circuit Court of Appeals [Neilson v. Ketchum], and ICWA’s provisions dealing with termination of parental rights will not support a reversal of the district court’s order. Because the district court did not err in granting the motion to transfer to tribal court, we affirm the order granting the motion to transfer.”

Facts (everything in bold is emphasis added):

M.H.C. (the child) was born in September of 2013. The Oklahoma Department of Human Services (DHS) placed the child in protective custody on November 5, 2013. In the initial petition filed on November 18, 2013, the State of Oklahoma1 (the State) declared ICWA’s provisions applicable. On November 21, 2013, the Cherokee Nation appeared at the initial appearance, and the natural mother informed the court that she had a Certificate of Degree of Indian Blood but was not currently a tribal member.

¶3 Thereafter, the Cherokee Nation received official notice from the State that it planned to adjudicate the child as deprived. The Cherokee Nation sent DHS a response notifying DHS that the child was eligible for enrollment in the tribe and enclosing a tribal-enrollment application for DHS to complete. The Cherokee Nation testified it could not complete the application without access to the child’s case file and birth certificate. After the Cherokee Nation’s initial attempt to have DHS complete the enrollment application, the Cherokee Nation sent DHS three additional enrollment applications. DHS employee Ms. Choate testified to seeing at least one application and acknowledged that a DHS employee can fill out a child’s enrollment application without natural mother’s assistance. Ms. Choate testified she had previously filled out a child’s application to help the child gain tribal membership.

¶4 On December 3, 2013, the district court ruled ICWA inapplicable. At the first family team meeting, the Cherokee Nation, the natural mother, and DHS were present. The natural mother was informed if she gained membership in the Cherokee Nation, ICWA would apply. The natural mother was also told if ICWA applied, the child would likely have to leave foster mother’s care because foster mother was a non-ICWA compliant placement. No party informed the natural mother of ICWA’s benefits and protections.2 The natural mother declined to enroll at the time. The district court subsequently found the State broke confidentiality by allowing the Cherokee Nation to attend a family team meeting in a non-ICWA case.

¶5 In September 2014, the State filed a motion to terminate the natural mother’s rights due to her absence in the pending court proceedings.The State served the natural mother by publication. On December 18, 2014, the court entered a Default Order of Termination of Parental Rights against the natural mother for failure to appear and defend her rights to her child. On February 5, 2015, the natural mother became an enrolled citizen of the Cherokee Nation. On February 19, 2015, the Cherokee Nation filed a motion to intervene and, on March 24, 2015, filed a motion to transfer to tribal court. In the spring of 2015, the district court vacated the order terminating the natural mother’s rights due to statutorily defective service. On June 9, 2015, the district court found natural mother’s rights were still intact and the permanency plan should be reunification.

The Appellants made the following arguments as to why OICWA and ICWA should not apply:

1. “Appellant’s position is that congressional intent to limit ICWA’s reach is found in its rejection of a proposed definition of ‘Indian’ to include all persons eligible for membership in an Indian tribe within ICWA’s purview whether or not a parent was a tribal member.”

2. “OICWA, 10 O.S.2011 §§ 40-40.9, limits ICWA’s application to children who are Indian children prior to the proceedings’ initiation.”

3. “ICWA’s plain language prohibits applying ICWA to a case where the child is not in a parent’s custody at the time the child comes within ICWA’s definition of Indian child.”

4. “Their initial premise is that the child was not removed from an Indian family because the mother was not enrolled at the time the State removed the child. Appellants assert that pursuant to Section 1902’s policy statement, ICWA applies only to ‘intact Indian families,’ and no Indian family existed at the time of the child’s removal.” An argument the Oklahoma Supreme Court called “at best, confusing.”

The Oklahoma Supreme Court found that “[t]he provisions of ICWA become effective in a state child custody proceeding on the date that the record supports a finding that ICWA applies. Section 1911(b) became applicable, with prospective application, when the child met the definition of an Indian child under ICWA. Appellants have failed to provide any authority which would require a different finding.”

The Supreme Court also agreed that transfer was appropriate, stating among other things:

Appellants claim the best interests of the child support denial of the transfer to tribal court. The record does not support their argument. The goal of the district court’s permanency plan was reunification with the natural mother. Appellants failed to present any evidence which would show that transfer to tribal court would not promote this goal. Although Appellants introduced evidence of a bond with a half-sibling in the foster mother’s care, they introduced no evidence of a bond with the foster mother and failed to present any evidence of physical or emotional harm to the child if the proceedings were transferred to tribal court. Appellants’ evidence was that the child would suffer from a change in foster-care placement-an issue not before the district court or this Court. ICWA’s placement preference are applicable to district court proceeding. And lastly, the best interests of the child can just as easily be determined by the tribal court.One argument Appellants strongly imply is that a tribal court could not make this determination. Appellants have not supported this implication, and we refuse to make such a finding.

Since the last time a state appellate court has affirmed a lower court’s transfer to tribal court, (In re Jayda L., Neb. Ct. App. 2012), there have been at least 13 other transfer cases. Only 2 others ended up with a transfer to tribal court (Kansas, Nebraska). This is the 20th case ever where the appellate court affirmed the lower court’s transfer decision. In comparison, there have been 22 times where the appellate court reversed the lower court’s decision to send the case to tribal court.