Custody of S.B.R., In re

Citation43 Wn.App. 622,719 P.2d 154
Decision Date12 May 1986
Docket NumberNo. 15486-9-I,15486-9-I
PartiesIn re the CUSTODY OF S.B.R., an Indian Child.
CourtCourt of Appeals of Washington

Evergreen Legal Services, Jack Warren Fiander, Russell William Busch, Seattle, Wash., for amicus curiae Chehalis Tribe.

Office of the Reservation Attorney, Amy Louise Crewdson, Taholah, Wash., for amicus curiae Quinault Indian Nation.

Richard Marshall Kilmer, Edmonds, Wash Stanley Anderson, Marysville, Wash., for Talalip Indian Tribe of the Talalip Rese.

Kafer, Good, St. Mary & Mitchell, Stephen Henry Good, Everett, Wash., for Waynetta & Patrick Brown and Tami Pablo.

WILLIAMS, Judge.

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;

Indian Child Welfare Act, 25 U.S.C. § 1901 (1983).

This case involves whether, under that Act, the Tulalip Indian Tribe is entitled to participate in a custody proceeding involving a Tulalip Indian child.

On May 17, 1982, Patrick and Waynetta Brown petitioned the Superior Court of Snohomish County seeking custody of S.B.R. because neither parent was a suitable custodian. See RCW 26.09.180(1)(b). The petition was supported by the child's mother, Tami Pablo, who is Mrs. Brown's daughter. On June 4, 1982, Stanley Anderson, the child's father, appeared, alleging in a counter petition seeking custody that he and his child were officially enrolled members of the Tulalip Indian Tribe and the provisions of the Indian Child Welfare Act applied. Following a March 16, 1983 trial, at which Anderson did not appear, the Browns were awarded permanent custody. On June 6, 1984, the Tulalip Tribe moved to intervene and for vacation of the custody order. These motions were denied, and the Tulalip Tribe appealed. Subsequently, on November 20, 1984, the custody order was modified in accordance with an agreement between the Browns and Pablo that she have custody of S.B.R., but that it would automatically revert to the Browns in the event of her death, disability, or inability to maintain the child.

The precise issue is whether the Indian Child Welfare Act applies to this proceeding. 25 U.S.C. § 1912(a) (1983) provides:

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, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.... No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary:

25 U.S.C. § 1911(c) (1983) provides:

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.

This action was an "involuntary" proceeding because neither parent consented, under the strict requirements of 25 U.S.C. § 1913(a) (1983), to the placement of the child with the Browns. It is uncontroverted that S.B.R. is an "Indian child." See 25 U.S.C. § 1903(4) (1983). "Foster care placement" is defined by 25 U.S.C. § 1903(1)(i) (1983) 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;

S.B.R. was removed from Anderson for temporary placement, as opposed to a permanent "adoptive placement" as defined by 25 U.S.C. § 1903(1)(iv) (1983), with the Browns. While "guardian" and "conservator" are not defined by the Act, the rights acquired by the Browns as S.B.R.'s custodians under RCW 26.09.250 include them within any definition of those terms. See Webster's Third New International Dictionary, at 483, 1007 (1969); Black's Law Dictionary, at 378, 834 (4th Rev.Ed.1968). Anderson cannot have S.B.R. returned to him upon demand, but must seek to modify the child custody decree pursuant to RCW 26.09.260. Thus, the trial court was without jurisdiction to hold this "foster care placement" proceeding until the Tulalip Tribe received notice thereof and was permitted to intervene.

The Browns assert that the Act does not apply to intra-family custody disputes, citing In re Bertelson, 617 P.2d 121, 125-26 (Mont.1980) wherein it was held that the Act does not apply to a custody dispute between a non-Indian parent and Indian grandparents. The language of the Act makes but two exceptions; it does not apply to the custody provisions of a divorce decree nor to delinquency proceedings. 25 U.S.C. § 1903(1) (1983). A basic rule of statutory construction is that express exceptions in a statute exclude all other exceptions. Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 1910, 64 L.Ed.2d 548 (1980); 2A Statutes and Statutory Construction § 47.11, at 145 (Sands 4th Ed. 1984 rev.); see also A.B.M. v. M.H. & A.H., 651 P.2d 1170, 1173, (Alas.), cert. denied, 461 U.S. 914, 103 S.Ct. 1893, 77 L.Ed.2d 283 (1982); People in the Interest of S.R., 323 N.W.2d 885 (S.D.1982).

The Browns assert that the Act does not apply where the child had never been a part of any Indian family relationship. See In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168, 175-76 (1982). Again, the language of the Act contains no such exception, and the Browns have presented no compelling reason to create one. See In re Junious M., 144 Cal.App.3d 786, 193 Cal.Rptr. 40, 46 (1983).

The Browns also assert that the Act should only be applied in light of the problem it was intended to solve--the removal of Indian children from their families by public and private social welfare agencies 1. See 25 U.S.C. § 1901(4) (1983). It is unnecessary to invoke the constructional rules urged by the Browns as the Congressional intent is clear on the face of the statute. See State ex rel. Juvenile Department, Multnomah Cy. v. England, 292 Or. 545, 640 P.2d 608, 613 (1982). It is in the Indian child's best interest that its relationship to its tribe be protected. 25 U.S.C. § 1901(3) (1983); In re Appeal in Pima County Juvenile Action No. S-903, 130 Ariz. 202, 635 P.2d 187, 189 (Ct.App.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). The Act, therefore, provides that Indian tribes are to play a central role in custody proceedings involving Indian children. In re Appeal in Maricopa County Juvenile Action No. A-25525, 136 Ariz. 528, 667 P.2d 228, 233 (Ct.App.1983). The Browns seek to deny the Tulalip Tribe any role in determining the custody of S.B.R. If Indian tribes are to protect the values Congress recognized, they must be allowed to participate in hearings in which those values are significantly implicated. Village of Chalkyitsik v. M.S.F. & J.J.G., 690 P.2d 10, 15 (Alas.1984).

The order of custody is vacated, and the case remanded for further proceedings consistent with this opinion.

COLE, J. Pro Tem., concurs.

SWANSON, Judge (dissenting).

I cannot agree with the majority's opinion that the Indian Child Welfare Act (ICWA) mandates intervention by the Tulalip Tribe and summary vacation of the custody decree. Not only does the present factual posture render this appeal moot, but I also conclude, as did the trial judge, that the ICWA does not apply to this intra-family child custody dispute.

That the ICWA was enacted with the express purpose:

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 (1983), is not in question; nor can there be any legitimate dispute that it was enacted to prevent abuses by welfare agencies and social groups, both public and private, seeking to remove Indian children from their families and their Indian environment. In such actions the procedural safeguards of the ICWA are applicable and must be made available to the Indian tribe. With that I agree wholeheartedly, but that is not this case.

The majority, by a rigid application of the ICWA, has summarily upset and overturned a custody order arrived at after observance of all procedural requirements of the ICWA except for actual notice to the tribe, but including notice to the putative father and the approval of the natural mother. We are not faced with an Indian child who was removed from his parents with no apparent justification other than to smother his cultural and paternal heritage as the tribe asserts in its brief and the majority assumes. Rather, this internal family custody dispute arises out of concern by the mother, Tami...

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