transfer to tribal court

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

Kate Fort

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

Kate Fort2 Comments

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

Kate Fort1 Comment

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

Kate Fort1 Comment

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

Kate Fort1 Comment

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.

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

Kate Fort3 Comments

Here.

This decision from last Thursday highlights the 1911(b) explicit transfer provision, which allows for foster care and termination proceedings to be transferred, but is silent on pre-adoptive or adoptive proceedings. The final footnote may provide some guidance in the future:

18  Because the Community sought transfer of jurisdiction only under the authority of 25 U.S.C. § 1911(b), we do not analyze or address the propriety of such a motion under any other authority. See In re Welfare of the Child of R.S. & L.S., 805 N.W.2d at 57 (Dietzen, J., concurring) (“The court’s consideration of those issues is dictum and not binding on the
court.”). See also 2016 BIA Final Rule, 81 Fed. Reg. 38822, J(1), Response to Comment (“Parties may request transfer of preadoptive and adoptive placement proceedings, but the standards for addressing such motions are not dictated by ICWA or these regulations. Tribes possess inherent jurisdiction over domestic relations, including the welfare of child citizens of the Tribe, even beyond that authority confirmed in ICWA. . . . Thus, it may be appropriate to transfer preadoptive and adoptive proceedings involving children residing outside of a reservation to Tribal jurisdiction in particular circumstances.” (citations omitted)); 25 U.S.C. § 1902 (providing a Congressional declaration of policy stating that ICWA establishes “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”).

Nebraska Supreme Court Decides Transfer to Tribal Court ICWA Decision

Kate Fort2 Comments

Here.

In a 4-3 decision (though all the justices unanimously would overturn the lower court denial of transfer), the Court uses the 2015 Guidelines and the Nebraska ICWA to overturn the lower court decision not to transfer based on the late stage of the proceedings, and denies the State’s attempt to use best interests in a jurisdictional determination:

In our consideration of whether good cause existed to overrule the motion to transfer, we find the amended BIA guidelines persuasive and instructive. The BIA guidelines were amended during this appeal, and we find them applicable to the case at bar. We hold that a determination that the proceeding is at an advanced stage is no longer a valid basis for finding good cause to deny a motion to transfer jurisdiction to a tribal court. We conclude that the overruling of the motion to transfer denied Appellant a just result.

***

We decline the State’s invitation to change our holding in In re Interest of Zylena R. & Adrionna R., 284 Neb. 834, 825 N.W.2d 173 (2012), for several reasons. First, we note that the amended BIA guidelines expressly provide that it is inappropriate for state courts to conduct an independent analysis of the best interests of the Indian child in determining placement preferences. While this preclusion of a best interests analysis did not specifically refer to transfers of cases to tribal courts, the BIA guidelines further state that whenever a parent or tribe – seeks to transfer the case to tribal court, it is presumptively in the best interests of the Indian child to transfer the case to the jurisdiction of the Indian tribe. Second, we find that the context of the U.S. Supreme Court’s statement in Adoptive Couple v. Baby Girl, supra, did not indicate that the Court intended to impose the best interests standard on motions to transfer.

Since ICWA was passed, there have only been fourteen cases where the appellate court reverses the lower court and orders transfer (out of 133 transfer cases total). There have been 9 cases the appellate court has reversed the lower court’s denial and ordered a hearing consistent with the decision.

The State also engaged in some shenanigans regarding the timing of the procedures:

The juvenile court found that the State had met its burden of showing good cause because the proceeding was at an advanced stage. It reasoned that usually, the date for determining whether the case was at an advanced stage would be the date of the filing of a motion to terminate parental rights. Because the State withdrew its motion for termination of parental rights on January 6, 2015, the court concluded that May 16, 2013, was the date of the State’s petition for adjudication. Using May 16, 2013, as the starting date, it concluded that the proceeding was at an advanced stage.

The juvenile court expressed concern that an Indian parent could play “an ICWA trump card at the eleventh hour” to transfer the case to tribal court. But we point out that the State’s dismissal of its motion to terminate parental rights to avoid a transfer leaves an Indian child suspended in uncertainty. If the State sought a termination of parental rights, the party seeking transfer could file a new motion to transfer and the State could again dismiss the termination proceeding. The juvenile court’s conclusion that the matter was in an advanced stage stemmed from the State’s voluntary dismissal of the termination proceeding.

Finally, there is an extensive partial concurrence and dissent joined by three Justices, explaining that the Court’s reliance on the 2015 Guidelines is due to their alignment with the Nebraska ICWA (most recently amended in 2015), and a lengthy discussion of how Nebraska should define “good cause” in the transfer provision. Ultimately, the dissent/concurrence stated:

In summary, I agree with the majority that the mere advanced stage of the proceeding should no longer be good cause to deny a motion to transfer to tribal court. But because we announce a significant change in the law today, I respectfully disagree with the majority’s disposition of this case, and suggest the better disposition would be to vacate, and remand for further proceedings, and in doing so, I would provide further guidance on the applicable standard of review, the appropriate quantum of proof, and the proper parameters of good cause to deny a transfer under ICWA and NICWA. For these reasons, I both concur and dissent in the opinion of the court.

Michigan Supreme Court Denies Review in ICWA Transfer Case

Kate Fort

Order here.

Original decision from court of appeals transferring the case to tribal court is here.

Utah Appeals Court Denies Transfer to Tribal Court

Kate Fort

Granted, it’s a strange and short decision about voluntary relinquishment. But we post it as another example of what state courts do when a tribe allows a case to go forward in state court and then moves to transfer at a later date.

After monitoring the case for approximately one year, the Tribe filed a motion to transfer the case to its tribal court. In response to the motion, the juvenile court found that good cause existed not to transfer jurisdiction to the tribal court due primarily to the fact that the case was in an advanced stage of litigation and all relevant witnesses resided in Utah.

Opinion here.