In re Shirley T.

• Decision Date: 03 January 2019
• Docket Number: Docket: Cum-18-178
• Citation: 199 A.3d 221
• Parties: IN RE CHILDREN OF SHIRLEY T.
• Court: Maine Supreme Court

199 A.3d 221

IN RE CHILDREN OF SHIRLEY T.

Docket: Cum-18-178

Supreme Judicial Court of Maine.

Argued: November 7, 2018
Decided: January 3, 2019

Lindsay M. Allen, Esq. (orally), Fairfield and Associates, P.A., Lyman, for appellant Shirley T.

Todd H. Crawford Jr., Esq. (orally), Law Office of Todd H. Crawford Jr., P.A., Raymond, for appellant David W.

Janet T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

GORMAN, J.

199 A.3d 222

¶ 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.

I. BACKGROUND

[¶ 2] There are two children at issue in this consolidated child protection matter—the son (the son) of Shirley T. (the mother) and David W. (the father), and Shirley T.'s niece (the niece), for whom Shirley T. has served as legal guardian since 2011.¹ On July 21, 2016, the Department of Health and Human Services initiated child protection proceedings as to both children in the District Court (Bridgton) with allegations involving substance abuse, domestic violence, insufficient supervision, mental health issues, the unexplained death of another of the mother's children, verbal and physical aggression toward the children, the father's prior conviction for sexual abuse of a minor, and the father's lack of involvement in the son's life.² The court (MG Kennedy, J. ) granted preliminary protection orders that day placing the children in Department custody.

[¶ 3] The mother waived her right to a summary preliminary hearing as to both children and later agreed to the entry of a jeopardy order by the court (Powers, J. ) based on her substance abuse and mental health issues. The father also agreed to the entry of a jeopardy order as to the son on grounds that the father was convicted of sexual abuse of a minor in 2006, resides on the Tribe's reservation in South Dakota, and has not had contact with the son for several years.³ In the jeopardy proceedings, the court also determined that ICWA applies to both matters because the children are, or are eligible to become, registered members of the Oglala Sioux Tribe of South Dakota. See 25 U.S.C.S. § 1903(4).

[¶ 4] In December of 2017, the mother, the father, and the Tribe (as an interested party) requested that the matter be transferred to the jurisdiction of the Tribal Court in South Dakota pursuant to ICWA; the Tribe also filed an order from the Tribal Court accepting jurisdiction as to both children.

[¶ 5] The court conducted a testimonial hearing on the motions to transfer jurisdiction, at which both children, the niece's counselor, the niece's foster mother, the son's foster father (who is the father of the son's half-siblings), the Department supervisor, the guardian ad litem (GAL), a qualified ICWA expert, and the Tribe's ICWA technician testified. The Department, the GAL, both children, and the ICWA expert

[199 A.3d 223

opposed the transfer. By order dated April 13, 2018, the court made the following findings of fact, which are supported by competent evidence presented at the motion hearing.

¶ 6] The son was thirteen years old at the time of the hearing and lives with the father of his three half-siblings, who are also Indian children. The son is happy in this household and wishes to stay. The son's biological father has never been active in the son's life.

[¶ 7] The niece, who was twelve years old at the time of the hearing, was born in South Dakota but moved to Maine at a young age. The niece lived with the mother since at least 2011, but was placed in foster care from 2015 to March of 2016 and again in July of 2016. She and the son go to the same school and interact there; the niece also maintains a close relationship with the rest of her cousins—the son's half-siblings—who live in the area with their father.

[¶ 8] The niece has been in counseling since 2015, with a short break in 2016. She has disclosed to her counselor a history of various forms of significant abuse, some of which occurred when she was young and living on the reservation in South Dakota. The niece has developed a trusting relationship with her counselor, with whom she should continue working to process her grief from her traumatic history and to decrease her anxiety.

[¶ 9] Both children are doing well in their current placements, where they are growing up as part of their Indian family in Maine, that is, with strong ties to the son's half-siblings/the niece's cousins. They have also been exposed to Indian culture while living with the mother.

[¶ 10] The children were the subject of prior child protection proceedings initiated in 2014. During those proceedings, the Tribe also moved to transfer jurisdiction to the Tribal Court, but the mother opposed the transfer, and the court (Bridgton, Darvin, J. ) also found good cause to deny the requested transfer. The GAL opined that the mother's support of the motion to transfer in the present matter is premised on her wish to "circumvent the safety requirements of DHHS in the reunification process by enlisting intervention from the Oglala Sioux Tribal Court." The Tribe has no presence in Maine.

[¶ 11] The Department has been providing services to the children and their family for an extended period of time. The children have extensive connections to Maine, including education services. Thus, the court determined, "Most of the relevant people with knowledge of the children's lives, including teachers and counselors, are in the local Maine area." The niece's mother and the son's father live elsewhere, and they have had almost no interaction with the children. The court concluded, "The State of Maine courts and Maine [Department] with its consistent history of involvement with this family are in the best position to determine the issues presented for review in this case now and in the near future. All knowledgeable witnesses needed to adjudicate this case further are in southern Maine. It would be a relative hardship to the parties and interven[ors] were these cases moved almost 2,000 miles away despite any possible audio/video accommodations."

[¶ 12] On this basis, the court found, by clear and convincing evidence, that there was good cause to deny the transfer of jurisdiction to the Tribal Court. The mother and father each appealed as to the son, and the mother also appealed as to her niece.⁴

[199 A.3d 224

II. DISCUSSION

¶ 13] ICWA was enacted in 1978 to address concerns, among others, "that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal 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 "that the States ... 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.S. § 1901(4) - (5) ; see In re Trever I. , 2009 ME 59, ¶ 15, 973 A.2d 752 ; In re Denice F. , 658 A.2d 1070, 1072 (Me. 1995). Based upon its determination 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.S. § 1901(3), Congress established "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes," 25 U.S.C.S. § 1902.

[¶ 14] Among ICWA's requirements are jurisdictional provisions for child custody proceedings regarding Indian children. 25 U.S.C.S. § 1911 ; see 25 U.S.C.S. § 1903(1) (defining "child custody proceeding"); 25 U.S.C.S. § 1903(4) (defining "Indian child"). Pursuant to 25 U.S.C.S. § 1911(b), when an Indian child subject to child custody proceedings is "not domiciled or residing within the reservation of the Indian child's tribe," the State court and tribal court have concurrent jurisdiction⁵ over that proceeding:

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.

The tribal court's jurisdiction is "presumptive[ ]" unless a parent objects, the tribe declines jurisdiction, or good cause to maintain the matter in the state court is established. Miss. Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 36, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).

[¶ 15]...