Guardianship of Q.G.M., Matter of

Citation808 P.2d 684
Decision Date26 March 1991
Docket NumberNo. 74370,74370
Parties, 1991 OK 29 In the Matter of the GUARDIANSHIP OF Q.G.M., a minor.
CourtSupreme Court of Oklahoma

Appeal from the District Court of Seminole County; Joseph Wrigley, Trial Judge.

This is an appeal from an order granting letters of guardianship of a Seminole child to his paternal grandparents after the trial court refused to allow the Seminole Tribe to intervene in the proceeding. We find that: 1) even though the proceeding involves an intra-family custody dispute, the Indian tribe may intervene at the dispositional stage of the proceeding and; 2) the mother may raise this error on appeal.

REVERSED AND REMANDED.

L. Susan Work and Colline W. Meek, Oklahoma Indian Legal Services, Inc., Oklahoma City, for appellant.

Richard E. Butner, Wewoka, for appellees.

KAUGER, Justice.

After refusing to allow the Seminole Tribe to intervene, the trial court granted letters of guardianship to the paternal grandparents of a Seminole Indian child. The dispositive issues are whether: 1) an Indian tribe which seeks to intervene in the proceedings must intervene at the first stage of the proceedings, or whether it may wait to intervene until the trial court reaches the dispositional stage; and 2) if the tribe fails to appeal the denial of its right to intervene, may the mother of the child raise the issue on appeal. We find that even though the proceeding involves an intra-family custody dispute, the Indian Child Welfare Act, 25 U.S.C. § 1912(a) (1978) (ICWA) allows the tribe to intervene at any point of the proceedings; and that the mother may raise this error on appeal. 1

FACTS

Q.G.M. is an eight year old Indian child whose custody is subject to the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1923 (1978). 2 His mother, M.M. (appellant-mother) On the morning of May 17, 1989, the mother's boyfriend attempted to pick up Q.G.M. at his grandparents, but they refused to let him leave. Later that morning, B. and G.M. called their lawyer, and they told him to file a petition for guardianship and for temporary custody. Around noon that same day, the mother located the grandparents and Q.G.M. at a hospital cafeteria.

is a fullblood Seminole. His father died in 1983. For most of Q.G.M.'s life, he and his mother resided with J.A.H., his "Indian grandmother", 3 in Wewoka. The appellees, B. and G.M., Q.G.M.'s paternal grandparents also live in Wewoka. After school on May 16, 1989, B. and G.M. took Q.G.M. to their home for their regular visitation with their grandson. Apparently, M.M., Q.G.M.'s mother, suffered a gallstone attack that day, and she was scheduled to go into the hospital for surgery two days later. That evening, Q.G.M.'s mother called him at his grandparent's home, and told him that she was ill. She also told B.M., the child's paternal grandmother, that she planned to move to Norman. B.M. responded that she and her husband would oppose the move. When the mother motioned for the child to come with her, the grandmother grabbed Q.G.M.'s arm; the grandfather hit the mother; and the boyfriend struck the grandfather. The police were called and they decided that Q.G.M. should leave with his mother. While the altercation at the hospital was in progress, the grandparent's attorney was filing an ex parte petition for temporary custody; and although the ex parte order was issued, it was never enforced. The mother was allowed to keep Q.G.M. until the trial on the guardianship issue. In July, the mother moved to Norman with Q.G.M., her boyfriend and their daughter.

The Seminole Tribe received notice of the proceedings on July 10, 1989. The tribe did not respond to the notice until October 16, 1989, when it delivered a letter to the trial court's secretary during the course of the guardianship proceeding. The tribe's letter advised the court that the Seminole Tribe was not represented by counsel; but that it wanted to be consulted about the placement of the child should the trial court decide to remove Q.G.M. from his mother's custody. The trial court treated the letter as a motion to intervene, and it denied the motion. On October 20, 1989, the trial court issued letters of guardianship to the grandparents, and the mother appealed.

AN INDIAN MOTHER MAY ASSERT THE FAILURE OF THE TRIAL COURT TO ALLOW HER TRIBE TO INTERVENE IN THE PLACEMENT OF HER CHILD.

Neither party disputes the fact that the Seminole Tribe received notice of the proceedings on July 10, 1989. The questions we must answer are: 1) whether the tribe can wait to intervene until the dispositional stage of the proceeding; and 2) whether the mother may challenge the failure of the trial court to allow intervention even though the tribe did not appeal.

A.

The stated purpose of the ICWA is to protect the best interests of the Indian child through promoting the stability and security of Indian tribes and Indian families by establishing guidelines to prevent the removal of these children from their Indian culture. 4 Section 1903(1) 5 of the Act defines custody proceedings under the Pursuant to 25 U.S.C. § 1915(c) the tribe may change the order of preference for the placement of the child which is set forth in § 1915(b) without showing good cause. The tribe need only show that the change is the least restrictive setting. Other than the trial court, the tribe is the only party which can change the order of preference.

ICWA. The only two proceedings excluded from the ambit of the Act are custody provisions of a divorce decree and delinquency proceedings--neither of which are at issue in the instant cause. Express exceptions in a statute exclude all other exceptions. 6 Recognition of a third exception--that the act will not apply to intra-family custody disputes--would require judicial legislation rather than statutory interpretation. The statutes protect the family, the child, and the tribe from separation. Intervention by the tribe insures that the child will not be removed from the Indian community and consequently lose touch with Indian traditions and heritage. 7 Section 1915(c) 8 is a clear indication of Congressional intent that tribes be involved in the placement of the child. Because placement of the child in the Indian community is the focal point of the ICWA, the mother has the right to raise this error on appeal. 9

B.

However, the grandparents argue that the tribe waived its rights when it neither responded nor requested additional time to prepare for the guardianship proceeding which is permitted by 25 U.S.C. § 1912(a) (1978). 10 Although we might "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." (Emphasis added). 11

agree with the grandparent's position, we are precluded from doing so by 25 U.S.C. § 1911(c) which provides:

As a matter of statutory analysis, the Court must give effect to the Act. We cannot ignore the plain words of a statute. 12 The statute allows the tribe to intervene at any point in the proceeding, and 25 U.S.C. § 1903(1)(i) (1978) 13 specifically includes guardianship proceedings. Even if a tribe fails to intervene at the beginning of a proceeding, it is not precluded from intervening at a later point in the absence of an express waiver of the right to intervene. A waiver of rights by the tribe should not be inferred. 14 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. It cannot be based simply on its failure to intervene at the initial proceeding. To do so, would be inconsistent with the ICWA goal of encouraging tribal control over custody decisions affecting Indian children. 15 The Seminole Tribe did not explicitly waive its right to intervene. Instead, it requested that the trial court allow it to be involved in the placement of the child should the child be removed from his Indian home.

CONCLUSION

The trial court erred when it denied the tribe's motion to intervene at the dispositional stage of the proceeding. 16 Failure to allow the mother to press this issue on appeal would thwart the central purpose of the Indian Child Welfare Act.

REVERSED AND REMANDED.

OPALA, C.J., and DOOLIN, ALMA WILSON and SUMMERS, JJ., concur.

HODGES, V.C.J., concurs in part, dissents in part.

LAVENDER, SIMMS and HARGRAVE, JJ., dissent.

HODGES, Vice Chief Justice, concurring in part, dissenting in part:

I concur in that part of the majority opinion which holds the trial court erred when it denied the tribe's motion to intervene. I must recede, however, from that part of the majority opinion which allows the mother to raise this error on her appeal where the tribe did not invoke its right of appellate review. The tribe has not appealed the trial court's ruling, nor joined in the appeal of the mother.

SIMMS, Justice, dissenting:

I.

I must respectfully dissent. I concur with Justice Hodges insofar as he believes the majority errs in holding that this mother may appeal the Tribe's denial of its motion to intervene. There is no provision in the Indian Child Welfare Act or other authority which supports finding that this mother or any third party had the capacity to raise the rights and interests of the Tribe on appeal. The Tribe did not appeal and any issues regarding the trial court's ruling on its attempted intervention have been abandoned and may not be presented by another.

II.

To my mind, however, there remains a threshold question as to the applicability of the Act which might deserve the additional consideration of this Court--a question as to the applicability of the Act to intra-family custody disputes in the first place.

As noted by the Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109...

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