In re Trever I.

• Decision Date: 11 June 2009
• Docket Number: Docket: And-08-584
• Citation: 2009 ME 59,973 A.2d 752
• Parties: In re TREVER I.
• Court: Maine Supreme Court

973 A.2d 752

2009 ME 59

In re TREVER I.

Docket: And-08-584

Supreme Judicial Court of Maine.

Submitted on Briefs: April 30, 2009.

Decided: June 11, 2009.

Shari R. Sobel, Esq., Bergen & Parkinson, LLC, Kennebunk, for the father.

Janet T. Mills, Atty. Gen., Nora Sosnoff, Asst. Atty. Gen., Augusta, for Maine Department of Health and Human Services.

Kristina Donovan, Esq., Auburn, Guardian ad litem.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, and MEAD, JJ.

ALEXANDER, J.

[¶1] The father of Trever I. appeals from a judgment of the District Court (Lewiston, Beliveau, J.) terminating his parental rights. The father argues that the court (1) erred when it terminated his parental rights following the Department of Health and Human Services's (Department) alleged failure to sufficiently investigate the father's claim of Indian heritage and the applicability of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.S. §§ 1901-1963 (2004), and (2) abused its discretion when it denied his motion to continue the termination hearing. We affirm the judgment.

I. CASE HISTORY

[¶2] The Department filed a petition for a child protection order on March 24, 2005, asserting that the father was physically absent and made no effort to build a relationship with Trever.¹ The petition stated that it was unknown at that time whether the child had a family member who is or may be a member of an Indian tribe. The court granted the Department's subsequent request for temporary custody, pending a hearing on the petition, due to the parents' inability or unwillingness to provide a safe, stable home for the child. During these preliminary proceedings, the father, represented by counsel, raised no issue of any relationship to an Indian tribe.

[¶3] On July 1, 2005, the court held a jeopardy hearing at which the father appeared with counsel. The court issued an uncontested jeopardy order granting full custody of Trever to the Department. In the jeopardy proceeding, the father conceded that the ICWA did not apply. According to the jeopardy order, the father was asked at the jeopardy hearing if he is a member of a federally-recognized Indian tribe. The father did not indicate that he was, the court determined that the ICWA did not apply, and the father expressly agreed to the findings and disposition in the jeopardy order.

[¶4] The record indicates that in 2006, the father informed a Department caseworker that he had "Indian heritage" and that he would follow-up with additional, more specific information. However, he never mentioned Indian heritage to the Department again. The Department worker stated that, other than meeting with the Department twice in 2006, the father largely failed to stay in contact with the Department and did not provide reliable contact information to the Department. The father appeared for only two scheduled court dates, the July 2005 jeopardy hearing and a case management conference held a year later. He failed to appear for the eight other court dates prior to the termination hearing.

[¶5] The Department filed a petition for termination of parental rights on June 23, 2006, which it supplemented on July 14, 2008. The record reflects that in the three years between the jeopardy hearing and the termination hearing, the father was elusive and made little effort to have any contact with his child. The Department's caseworker testified at the termination hearing that she told the father about the termination petition during a call, advising him that the Department needed to serve him with the termination petition, and that there would be an upcoming termination hearing. The caseworker attempted to get the father's address so that he could be served for the termination hearing. Though he stated that he did not want his parental rights terminated and that he intended to be at the hearing, the father refused to provide a contact number or address except to say that he was in a hospital in Massachusetts.

[¶6] On July 24, 2008, the Department sent a letter to the Bureau of Indian Affairs, U.S. Department of the Interior (Bureau), giving the father's name and birthdate as well as Trever's paternal grandmother's name and presumed decade of birth, and seeking any information the Bureau had to support the father's claim that he is of Indian descent. Based on the limited information provided, the Bureau responded in a letter dated August 11, 2008, that it was unable to confirm the father's Indian ancestry. The Bureau stated that a person claiming an Indian bloodline needs to provide the names, birthdates, place of birth, and tribal affiliation of relatives believed to be Indian in order for the Bureau to conduct a search.

[¶7] On August 12, 2008, the Department filed a motion for service by publication with respect to the father, asserting that, despite specified diligent search efforts, it could not locate him. Because the father's whereabouts were unknown, the court ordered that notice of the termination hearing be served on the father by publication. M.R. Civ. P. 4(g).

[¶8] A contested termination hearing was held on September 24, 2008. The father did not appear, although his attorney was present. The father's attorney informed the court that he had spoken to the father by phone just before the hearing began and that the father requested a continuance for two reasons: (1) the father claimed to be hospitalized out of state in a veteran's hospital and was not allowed to be released to attend the hearing, and (2) the father was "close to getting information related to" the ICWA, has a "Cherokee background," and wanted additional time to try to determine whether the ICWA applied to him.

[¶9] The State objected to the father's motion to continue, asserting that: (1) Department staff had seen him around Lewiston in recent weeks; (2) the Department had no information that he was then hospitalized out-of-state; (3) he had not made a proper motion documenting his inability to attend the hearing; and (4) he was duly served by publication and had a pattern of missing court dates. The State also argued that the father had agreed at the jeopardy hearing that the ICWA did not apply to him and that he had three years between the jeopardy hearing and the termination hearing to provide information to the Department concerning his alleged Indian heritage.

[¶10] The court denied the father's motion to continue. It then proceeded with the hearing. During the hearing, the court heard testimony from two witnesses for the State, admitted the two letters exchanged between the Department and the Bureau and proof of service on the father by publication, and admitted the most recent guardian ad litem report. The Department caseworker testified that she had no recollection of the father mentioning that he had a "Cherokee background" when he told her in 2006 that he had "Indian heritage." She further testified that Trever had been in foster care for forty-one months and that the hope is that his current foster family will adopt him. At the conclusion of the hearing, the court indicated on the record that it would order termination of the father's parental rights.

[¶11] On October 7, 2008, the court entered a written judgment terminating the father's parental rights. The court explained its reasoning for denying the father's request for a continuance, stating that the father had: (1) attended only two court appearances, and failed to appear at eight other identified court dates; (2) been on notice of the case since his appearance at the jeopardy hearing on July 1, 2005; and (3) taken no steps to seek a continuance until his attorney contacted him moments before the hearing started. The court also concluded that the ICWA did not apply, based on the father's agreement at the 2005 jeopardy proceeding that the ICWA was inapplicable, his minimal suggestions to the Department since then of his Indian heritage, and the Bureau's inability to identify any tribal affiliation. The court found that the father's parental unfitness was proven by clear and convincing evidence based on all four prongs of 22 M.R.S. § 4055(1)(B)(2)(b) (2008) and that termination of his parental rights was in the child's best interest. The father then brought this appeal.

II. LEGAL ANALYSIS

A. Burden to Determine the Applicability of the ICWA

[¶12] The father argues that once he informed the Department caseworker in 2006 of his belief that he had Indian ancestry, the Department had the duty to seek additional information about his ancestry to determine whether the ICWA applied, and that its one letter to the Bureau failed to satisfy that duty. The father further argues that the court (1) erred in conducting the termination hearing, instead of continuing the proceeding, and (2) deprived him of his fundamental liberty interest when it terminated his parental rights without first determining, based on evidence, that the ICWA did not apply. Essentially the father argues that once any parent in a child protective proceeding alleges that the parent has Indian heritage, the Department assumes the burden to seek and obtain evidence and present it to the court to disprove the allegation of Indian heritage before the case can proceed.

[¶13] Generally, in a civil case, the party to a proceeding who has better access to information and is seeking the benefit of a protection or exception to a law has the burden of proof on that point. See generally Meacham v. Knolls Atomic Power Lab., ___ U.S. ___, ___, 128 S.Ct. 2395, 2400, 171 L.Ed.2d 283 (2008); United States v. New York, New Haven & Hartford RR. Co., 355 U.S. 253, 256 n. 5, 78 S.Ct. 212, 2 L.Ed.2d 247 (1957) ("The ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly in the knowledge of his adversary."); Dowley v. Morency, 1999 ME 137, ¶ 11, 737 A.2d 1061, 1066. To determine which party bears the burden of investigating the Indian heritage of a...