DEPT. OF HUMAN SERVS. v. NEAL JG

• Decision Date: 05 March 2003
• Docket Number: No. 02-0574, No. 02-0575.
• Citation: 259 Wis.2d 563,657 N.W.2d 363,2003 WI 11
• Parties: IN RE the TERMINATION OF PARENTAL RIGHTS TO ARIANNA R.G., a Person Under the Age of 18: SHEBOYGAN COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. NEAL J.G., Respondent-Appellant. IN RE the TERMINATION OF PARENTAL RIGHTS TO HUNTER D.G., a Person Under the Age of 18: SHEBOYGAN COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. NEAL J.G., Respondent-Appellant.
• Court: Wisconsin Supreme Court

259 Wis.2d 563

2003 WI 11

657 N.W.2d 363

IN RE the TERMINATION OF PARENTAL RIGHTS TO ARIANNA R.G., a Person Under the Age of 18:

SHEBOYGAN COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. NEAL J.G., Respondent-Appellant.

IN RE the TERMINATION OF PARENTAL RIGHTS TO HUNTER D.G., a Person Under the Age of 18:

SHEBOYGAN COUNTY DEPARTMENT OF HUMAN SERVICES, Petitioner-Respondent, v. NEAL J.G., Respondent-Appellant.

Nos. 02-0574, 02-0575.

Supreme Court of Wisconsin.

Oral argument November 7, 2002.

Decided March 5, 2003.

For the respondent-appellant there were briefs (in the court of appeals) by Timothy A. Provis, Madison, and oral argument by Timothy A. Provis.

For the petitioner-respondent there was a brief (in the court of appeals) by Mary T. Wagner, assistant district attorney, and Robert J. Wells, Jr., district attorney, and oral argument by Mary T. Wagner.

¶ 1. ANN WALSH BRADLEY, J.

This case comes before us on a petition to bypass the court of appeals pursuant to Wis. Stat. (Rule) § 809.60 (1999-2000). Neal J.G. (Neal) appeals an order of the Sheboygan County circuit court terminating his parental rights to his two children.¹ He claims that the circuit court erred in failing to comply with the notice requirement of the Indian Child Welfare Act (ICWA).²

¶ 2. We conclude that the information before the circuit court was too vague for the court to have reason to know that each of Neal's children met the definition of "Indian child" under the ICWA. Because the information was insufficient to show that the ICWA applied in this case, no notice was required. Accordingly, albeit with different rationale, we affirm the order of the circuit court terminating Neal's parental rights to his children.

I

¶ 3. The Sheboygan County Department of Health and Human Services (the department) filed petitions with the Sheboygan County circuit court to terminate involuntarily Neal's parental rights to his two children. On July 23, 2001, Neal filed a motion with the circuit court requesting that either (a) the proceedings be dismissed because of the department's failure to comply with the ICWA or (b) the proceedings be suspended in order to comply with the ICWA by "providing notice of the proceedings to the Ojibwa Tribe in Marinette, Wisconsin." The motion stated that the children had an Indian ancestry:

[Neal] asserts that he has Indian heritage, both on his mother's side of the family and his father's side of the family. Specifically, [Neal's mother] is aware that her Indian ancestry stems from the Ojibwa Tribe in Marinette, Wisconsin. [The children's great-great-grandmother] is/was a member of the Ojibwa Tribe.

¶ 4. At a hearing on August 3, 2001, the circuit court addressed this motion. The court initiated further inquiry and requested that Neal's mother provide additional details regarding the children's heritage that might indicate that they were eligible for any tribal membership.

¶ 5. By letter dated August 3, 2001, the assistant district attorney of Sheboygan County sent a notice to the U.S. Department of the Interior describing the possible Indian child status of the children. The letter noted information apparently obtained as a result of the additional inquiry requested by the circuit court. It stated that the children's grandmother indicated that her grandmother was born on an Indian reservation somewhere in Canada around 1880 and later moved to Marinette, Wisconsin. Neal's motion was attached to the letter.

¶ 6. The acting director of the Office of Tribal Services responded with a letter dated August 22, 2001, explaining that the information was insufficient to make a determination regarding the Indian child status of the children:

We are unable to determine Indian ancestry due to insufficient information on tribal affiliation. The Bureau of Indian Affairs does not maintain comprehensive list [sic] of persons possessing Indian blood. This kind of information can be obtained from the Tribe itself, if tribal affiliation can be determined . . . Pursuant to the [ICWA], it is incumbent upon the agency responsible for the action such as child custody proceedings involving Indian children to notify the appropriate tribe(s) directly of their right to intervene in proceedings involving their tribal children. Accordingly, if additional information on tribal affiliation becomes available . . . you are advised to notify the appropriate tribe(s) directly of their right to intervene in the above proceedings.

¶ 7. On September 14, 2001, Neal filed a motion that "the prosecution be compelled to provide notice of these proceedings to the Ojibwa Tribe in Marinette, Wisconsin, as previously and specifically requested, in compliance with the Indian Child Welfare Act." At a hearing on September 20, 2001, the following discussion occurred:

THE COURT: . . . Item number 2 then is notice to the Ojibwa Tribe in Marinette, Wisconsin, under the Indian Child Welfare Act. Attorney Spoerl, on that issue?

ATTORNEY SPOERL: This was a follow-up to a motion that I filed or that was heard last time we were in court. After that motion hearing, my client's mother went down to the District Attorney's Office and provided, I believe, as much information as she had concerning the tribal connection that she has through her family.

Specifically, in my earlier motion, I mentioned the Ojibwa Tribe in Marinette, Wisconsin. I'm sure my client's mother explained why she believed that the Ojibwa Tribe was a connection ...

For some reason, notice was not sent specifically to the Ojibwa Tribe in Marinette. I don't know why.

THE COURT: Mr. Van Akkeren, on notice to the Ojibwa Tribe?

ATTORNEY VAN AKKEREN: Your honor, to my knowledge, there is no Ojibwa Tribe in Marinette, Wisconsin. One of the — I provided to the Court the letter we sent to the Secretary of the Interior, and I provided the Court the response.

An additional effort to try to find an Ojibwa Tribe in Marinette, Wisconsin, I searched the internet for any reference to them. Ms. Erdmier contacted the Bureau of Indian Affairs, the local office in Fort Snelling, Minnesota. They do not list any Ojibwa Tribe in Marinette, Wisconsin.

I reviewed a juvenile court handbook which I use which discusses the various, juvenile court handbook concerning Wisconsin, lists Indian tribes within Wisconsin, and there is no Ojibwa Tribe listed in Marinette, Wisconsin. We have no way of notifying any Ojibwa Tribe in Marinette, Wisconsin.

THE COURT: I don't know either. I'm fairly familiar with Marinette, Wisconsin, having some property in Marinette County. There certainly are Chippewas, which is another name for the Ojibwa.³ It's the more anglicized name in Wisconsin, obviously, at various observations [sic] of Red Cliff and other places. I certainly don't know of any in Marinette. If the Bureau of Indian Affairs knows of none, I guess there won't be any.

ATTORNEY VAN AKKEREN: I searched under Chippewa because I knew that was the anglicized version . . . .

THE COURT: ... Based on the sketchy information provided by [Neal's] mom, I don't think the Department or Public is in any position to do anything further than it has done. I'm satisfied that under the circumstances the provisions of the Indian Child Welfare Act have been met.

¶ 8. A jury returned a verdict finding grounds to terminate Neal's parental rights and the circuit court ordered Neal's parental rights terminated. Neal appealed on the issue of compliance with the notice requirement in 25 U.S.C. § 1912(a). He asserted that notice should have been sent to the six Chippewa tribes in Wisconsin listed by the Bureau of Indian Affairs as Indian tribes recognized to receive services from the Secretary of the Interior.⁴ This court granted the department's petition to bypass the court of appeals pursuant to Wis. Stat. (Rule) § 809.60 (1999-2000).

II

[1]

¶ 9. This case provides us with an opportunity to review when and under what circumstances a court has reason to know that a child involved in a termination of parental rights proceeding is an "Indian child" under the ICWA thereby triggering the notice requirement. This issue is essentially one of statutory interpretation which presents a question of law subject to independent appellate review. In re D.S.P., 166 Wis. 2d 464, 471, 480 N.W.2d 234 (1992). In reaching our determination, we first briefly discuss the background and objectives of the ICWA. We then analyze the notice requirement of 25 U.S.C. § 1912(a). Finally, we apply our analysis of the notice requirement to the circuit court proceedings and conclude that the information before the circuit court was too vague for the court to have reason to know that each of Neal's children met the definition of "Indian child" under the ICWA. Because the information was insufficient to show that the ICWA applied in this case, no notice was required.

III

¶ 10. An understanding of the background and objectives of the ICWA is essential to our analysis. The ICWA was enacted in 1978 in response to mounting evidence of abusive child welfare practices that were separating large numbers of Indian children from their families and tribes through adoption or foster care placement, usually to non-Indian homes. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989)

(detailing background to the ICWA). In describing the state of affairs that led to the ICWA, a House Report noted that the "wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today" and the "disparity in placement rates for Indians and non-Indians is shocking." H.R. Rep. No. 95-1386 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7531.

¶ 11. The Congressional findings in the ICWA recognized that: (a) Indian children are essential to the continued existence and integrity of Indian tribes, (b) Indian families are often broken up by the unwarranted removal of children with an alarmingly high...