State in Interest of D.A.C.

• Decision Date: 27 February 1997
• Docket Number: No. 950573-CA,950573-CA
• Citation: 933 P.2d 993
• Parties: 311 Utah Adv. Rep. 37 STATE of Utah, in the Interest of D.A.C., P.D.C., and S.D.C., persons under eighteen years of age. D.J.C., Petitioner and Appellee, v. P.D.C., Respondent and Appellant.
• Court: Utah Court of Appeals

Page 993

933 P.2d 993

311 Utah Adv. Rep. 37

STATE of Utah, in the Interest of D.A.C., P.D.C., and

S.D.C., persons under eighteen years of age.

D.J.C., Petitioner and Appellee, v. P.D.C., Respondent and Appellant.

No. 950573-CA.

Court of Appeals of Utah.

Feb. 27, 1997.

Cindy Barton-Coombs, Roosevelt, for Respondent-Appellant.

John C. Beaslin, Vernal, for Petitioner-Appellee Cleve J. Hatch, Vernal, Guardian Ad Litem.

Before DAVIS, BILLINGS and GREENWOOD, JJ.

OPINION

BILLINGS, Judge:

P.D.C. (Father) appeals the juvenile court's termination of his parental rights in his three children. Father contends the action should have been transferred to tribal court under the Indian Child Welfare Act of 1978 (ICWA) and that ICWA standards applicable to termination of parental rights to an Indian child were not met. We affirm in part and reverse and remand in part.

FACTS

D.J.C.R. (Mother) and D.R.R. (Stepfather) petitioned to have Mother's three children, D.A.C. and P.D.C., fourteen-year-old twins, and S.D.C., seven years old, adopted by Stepfather. Mother then petitioned to terminate Father's parental rights.

Father and all three children are enrolled members of the Eastern Shoshone Tribe (Tribe). However, the children have never lived on or near the Tribe's reservation. Until 1989, when Mother and Father divorced, the family maintained its domicile in Vernal, Utah. In the divorce decree, Mother was granted custody of the children subject to Father's reasonable visitation rights, and Father was ordered to pay monthly child support. Mother has no Indian heritage nor does Stepfather, whom she married in 1990.

Father moved to transfer the termination of parental rights proceeding to tribal court pursuant to ICWA. See 25 U.S.C. § 1911(b) (1983). Mother objected to the transfer. The court allowed the Tribe to intervene in the case, but denied removal to tribal court. The juvenile court retained jurisdiction, noting Mother's objection and finding good cause not to transfer the case, and the case proceeded to trial.

At trial, it was shown that Father has a history of violent behavior. On numerous occasions, Father threatened Mother with physical harm, including threatening to kill her. Father also has failed to pay child support. Father has been incarcerated three times since the birth of the older children, most recently from 1990 to 1994 for felony assault against Mother. This conviction resulted from an incident when Father broke into Mother's home and physically assaulted her. S.D.C., then age three, witnessed this assault and was knocked to the ground from Mother's arms during it. Father also habitually and excessively used alcohol and controlled substances and was inebriated at times in the children's presence.

Based upon the above facts, the juvenile court terminated Father's parental rights under state law. The court concluded ICWA did not apply to this termination proceeding because there was no existing Indian family as contemplated by the policies underlying ICWA.

Father appealed, and the juvenile court granted Father's motion to stay the adoption proceedings pending appeal. Specifically, Father appeals the court's refusal to transfer the case to tribal court and the court's conclusion that ICWA was not applicable to this proceeding. He argues that if the juvenile court had applied the provisions of ICWA, Mother would not have met her burden to terminate his parental rights, and we therefore should reverse the juvenile court's order.

ANALYSIS

I. Transfer to Tribal Court

Father contends the juvenile court erred in refusing to transfer this termination of parental rights proceeding to tribal court pursuant to ICWA, 25 U.S.C. § 1911(b) (1983).

Under ICWA, tribal courts have exclusive jurisdiction over child custody proceedings ¹ involving Indian children ² domiciled on a reservation. Id. § 1911(a). However, ICWA 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.

creates concurrent, but presumptively tribal, jurisdiction in proceedings involving Indian children not domiciled on a reservation. Id. § 1911(b). Section 1911(b) provides:

Id.

Although Father admits the United States House of Representatives' Report on section 1911(b) states that "either parent is given the right to veto" transfer of jurisdiction to tribal court, he contends the section does not give either parent an absolute veto over the transfer of jurisdiction. To determine whether section 1911(b)'s language is intended to create an absolute veto, we examine the administrative guidelines and relevant case law.

The Bureau of Indian Affairs has promulgated nonbinding guidelines to assist in interpreting section 1911(b) as follows:

Upon receipt of a petition to transfer by a parent, Indian custodian or the Indian child's tribe, the court must transfer unless either parent objects to such transfer, the tribal court declines jurisdiction, or the court determines good cause to the contrary exists for denying the transfer.

....

Since the Act gives the parents and the tribal court of the Indian child's tribe an absolute veto over transfers, there is no need for any adversary proceedings if the parents or the tribal court opposes transfer.

Guidelines for State Courts, Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,590-91 (1979) (not codified) (emphasis added) (BIA Guidelines).

The United States Supreme Court has also referred to a parent's veto power as follows:

Section 1911(b) ... creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state-court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of 'good cause,' objection by either parent, or declination of jurisdiction by the tribal court.

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 109 S.Ct. 1597, 1601-02, 104 L.Ed.2d 29 (1989) (emphasis added).

Additionally, several of our sister states have interpreted section 1911(b) as giving parents an absolute veto over transfer of jurisdiction. See, e.g., In re Appeal in Maricopa County, 186 Ariz. 354, 922 P.2d 319, 321-22 (App.1996) ("Consistent with uniform authority, this court has held that, under § 1911(b), a parent's 'objection mandate[s] the retention of jurisdiction.' " (citation omitted)); In re Larissa G., 43 Cal.App.4th 505, 51 Cal.Rptr.2d 16, 22 (1996) (concluding plain language allowing parental objection to transfer is supported by administrative guidelines and policy of ICWA); In re Adoption of S.S., 167 Ill.2d 250, 212 Ill.Dec. 590, 657 N.E.2d 935, 940, 942 (1995) (stating transfer can occur only absent parental objection); In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168, 178 (1982) (holding parent's clear objection to transfer proscribes transfer); In re Laurie R., 107 N.M. 529, 760 P.2d 1295, 1299 (Ct.App.1988) (interpreting guidelines to mean State must transfer unless either parent objects); In re Spang, no. 95-2, 1995 WL 776051, at * 2 (Ohio.Ct.App. Dec.26, 1995) (holding mother's express objection to transfer "sufficient under the statute to negate the transfer"); In re S.Z., 325 N.W.2d 53, 56 (S.D.1982) ("This statute [section 1911(b) ] provides that objection by either parent will keep jurisdiction in the state court.").

In the present case, the juvenile court, although recognizing the clear language of section 1911(b) and the BIA Guidelines, determined it was not necessary for it to decide whether an objection by one parent to the transfer of jurisdiction was an absolute

                veto because good cause existed to retain the proceeding in state court.  Because we may affirm on any proper ground and to give direction in subsequent proceedings, we take this opportunity to adopt the majority view that the plain language of section 1911(b) allows parents of Indian children domiciled off a reservation an absolute veto over transfer of jurisdiction to tribal courts. 3  Accordingly, we uphold the trial court's retention of jurisdiction
                

II. Application of ICWA to Termination Proceedings

Next, Father appeals the juvenile court's determination that ICWA did not apply in his termination of parental rights proceeding because "the termination of [Father]'s parental rights will not result in the break-up of an Indian family."

In order to (1) "protect the best interests of Indian children" and (2) "promote the stability and security" of Indian children, tribes, and families, Congress passed ICWA to establish "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). ⁴ To implement these policy goals in Indian child custody proceedings occurring in state court, ICWA provides substantive and procedural safeguards that must be met in addition to state law standards. See, e.g., id. § 1912.

The instant case presents us with the termination of an Indian father's parental rights in his Indian children. A termination of parental rights proceeding ⁵ is included under ICWA's definition of child custody proceedings. Id. § 1903(1). Further, ICWA defines an "Indian child" as any unmarried person under the age of eighteen who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. Id. § 1903(4).

Neve...