People in Interest of J.L.P., s. 92CA1007

Decision Date10 February 1994
Docket Number92CA1777,Nos. 92CA1007,s. 92CA1007
Citation870 P.2d 1252
PartiesThe PEOPLE of the State of Colorado, In the Interest of J.L.P., S.D.P., W.J.P. and C.P., Children, Appellants, And Concerning M.L.P., Respondent-Appellee, and Oglala Sioux Tribe, Intervenor-Appellee. . III
CourtColorado Court of Appeals

David Littman, P.C., Gaynell Gavin, Denver, guardian ad litem.

No appearance for respondent-appellee.

Fredericks, Pelcyger, Hester & White, Mark C. Tilden, Boulder, for intervenor-appellee.

Opinion by Judge TAUBMAN.

In this dependency and neglect proceeding concerning two children, W.J.P. and C.P., guardian ad litem, Gaynell Gavin (GAL), appeals the order of the juvenile court transferring jurisdiction to the Oglala Sioux (Tribe) tribal court under the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901, et seq. (1988). The GAL also appeals the juvenile court's order limiting the scope of the record and its refusal to hold a permanency planning hearing during the pendency of the appeal. We affirm.

In September 1990, the Denver Department of Social Services (DDSS) filed a dependency and neglect petition against M.L.P. (father) and S.R.P. (mother), involving their minor children, two of whom are W.J.P. and C.P., ages 7 and 6, respectively. Because the children were enrolled members or eligible for enrollment in the Oglala Sioux Tribe, see 25 U.S.C. § 1903(4) (1988), the Tribe was notified of the proceedings pursuant to the ICWA in October 1990. The children were adjudicated dependent and neglected and placed in the custody of DDSS in April of 1991. A treatment plan for the father was ordered. The mother is now deceased.

In approximately October 1991 the Tribe intervened and requested that jurisdiction be transferred to the tribal court. The GAL requested a plan regarding the care and custody of the children from the Tribe. She also attempted to obtain information regarding the Tribe's plans for the children through interrogatories and a request for production of documents. The Tribe refused to supply a custody plan or comply with the GAL's discovery requests because it took the position that these requests interfered with tribal sovereignty and the ICWA. The proceedings dealing with two older children were transferred to the Tribe by stipulation.

Later, the GAL sought to compel discovery and the Tribe requested a protective order. At a motions hearing, the juvenile court granted the Tribe's request for a protective order and requested additional briefing on whether good cause existed to prevent transfer of the matter to the Tribe. The juvenile court reserved the right to make findings on this matter based on the briefs and without conducting a subsequent hearing. It later found that good cause did not exist to retain jurisdiction and transferred the matter to the Tribe. The GAL appealed. In June 1992, a division of our court granted a stay of execution of transfer of jurisdiction pending appeal.

The GAL submitted her designation of the record to which the Tribe objected as being overbroad. A motions panel of this court remanded the motion for determination by the juvenile court. The juvenile court granted the Tribe's motion to exclude documents not related to the transfer of jurisdiction issue.

The GAL also requested a family interactional evaluation and a permanency planning hearing after the juvenile court had transferred jurisdiction to the Tribe and after a notice of appeal had been filed. The juvenile court denied the motion because it believed it lacked jurisdiction.

I. Transfer of Jurisdiction

Presenting an issue of first impression in Colorado, the GAL argues that the juvenile court improperly transferred jurisdiction to the Tribe when good cause existed for it to retain such jurisdiction. We disagree with the GAL's contention.

A. The Indian Child Welfare Act

The ICWA was enacted to prevent the separation of large numbers of Indian children from their families and tribes caused by adoption or foster care placement in non-Indian homes by state child welfare entities. The Congressional findings that were incorporated into the ICWA reflect the sentiment that no resource is more vital to the continued existence and integrity of Indian tribes than their children. 25 U.S.C. § 1901 (1988). Hence, the ICWA provides Indian tribes with jurisdiction to determine child placement and adoption.

At the core of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings. 25 U.S.C. § 1911 (1988) provides a dual jurisdictional scheme. 25 U.S.C. § 1911(a) (1988) establishes exclusive jurisdiction in the tribal courts for proceedings involving an Indian child "who resides or is domiciled within the reservation of such tribe...." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).

The provision applicable here, 25 U.S.C. § 1911(b) (1988), creates concurrent jurisdiction between the state in which the child resides and the tribe. It states:

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 party, 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.

Thus, even for an Indian child who lives off reservation, the tribal court is still the preferred jurisdiction under the Act absent a showing of "good cause" to the contrary. See In re Robert T., 200 Cal.App.3d 657, 246 Cal.Rptr. 168 (1988).

B. Standard of Review

Whether good cause exists to retain jurisdiction is within the juvenile court's discretion. In re Dependency & Neglect of A.L., 442 N.W.2d 233 (S.D.1989); In re Wayne R.N., 107 N.M. 341, 757 P.2d 1333, 1335 (1988). This determination is necessarily made on a case-by-case basis, after careful consideration of all the circumstances of the case. In re Wayne R.N., supra. Thus, our review is limited to an examination of the record to determine whether substantial evidence supports the juvenile court's finding. In re Robert T., supra; In re Wayne R.N., supra.

C. Good Cause

Good cause is not defined in the ICWA. Instead, the Bureau of Indian Affairs (BIA) has issued guidelines for determining whether good cause exists. Department of Interior, Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Welfare Custody Proceedings--Part III, 44 Fed.Reg. 67,583 (1979) (BIA Guidelines). Although the BIA followed the notice and comment rulemaking procedures of the federal Administrative Procedure Act, the Guidelines were not published as regulations out of deference to state and tribal courts and because they were not intended to have binding legislative effect. See BIA Guidelines, supra, at 44 Fed.Reg. 67,584. The Guidelines represent the BIA's interpretation of the Act, however, and are useful in interpreting its provisions. In re Robert T., supra. Furthermore, a number of states have addressed the transfer of jurisdiction issue using these Guidelines. Accordingly, we consider them to be persuasive authority here.

The burden of establishing good cause not to transfer jurisdiction is on the party opposing the transfer. In Interest of Armell, 194 Ill.App.3d 31, 141 Ill.Dec. 14, 550 N.E.2d 1060 (1990) (citing BIA Guidelines, supra ). The party attempting to prevent the transfer must establish good cause with clear and convincing evidence that the best interests of the child would be injured by such a transfer. In re M.E.M., 195 Mont. 329, 635 P.2d 1313 (1981).

The BIA Guidelines state that good cause not to transfer jurisdiction exists when the child's tribe does not have a tribal court or when any of the following circumstances exist:

(i) The proceeding was at an advanced stage when the petition to transfer was received or the petitioner did not file the petition promptly after receiving notice of the hearing;

(ii) The Indian child is over twelve years of age and objects to the transfer;

(iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses;

(iv) The parents of a child over five years of age are not available and the child has had little or no contact with the child's tribe or members of the child's tribe.

BIA Guidelines, 44 Fed.Reg. 67,591 (1979).

D. Proper Transfer of Jurisdiction

The GAL first contends that because the Tribe requested the transfer of jurisdiction at such a late stage in the proceedings good cause existed not to transfer. We disagree.

The BIA Guidelines provide that a transfer request shall be made promptly after receiving notice of the proceedings. BIA Guidelines, supra, at 44 Fed.Reg. 67,590. A number of courts have denied transfer on grounds of lack of timeliness, but we find those cases factually distinguishable from the situation here.

For example, in People in Interest of J.J., 454 N.W.2d 317 (S.D.1990), the tribe did not request transfer of jurisdiction until the case was on appeal and the Indian appellant had lost the custody fight in the trial court. The South Dakota Supreme Court denied the transfer request. Here, in contrast, the father was not attempting to find a more favorable forum and the proceedings before the juvenile court had not been completed when the tribe requested the transfer of jurisdiction.

The California Court of Appeals, in In re Robert T., supra, also denied transfer of jurisdiction because the tribe's request came 16 months after a permanency planning hearing and preadoption placement of the Indian child with an acceptable foster family under the ICWA. Here, the Tribe intervened one year after it received notice of the proceedings. Moreover, a...

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