Ex Parte C.L.J.

• Decision Date: 23 June 2006
• Docket Number: 2050367.
• Parties: Ex parte C.L.J., a minor child, by and through her guardian ad litem. (In re C.L.J., a minor child).
• Court: Alabama Court of Civil Appeals

946 So.2d 880

Ex parte C.L.J., a minor child, by and through her guardian ad litem.

(In re C.L.J., a minor child).

2050367.

Court of Civil Appeals of Alabama.

June 23, 2006.

Jacob A. Dubin of Keith & Hamm, P.C., Montgomery, for petitioners S.R. and B.R.

Aimee C. Smith, guardian ad litem, Montgomery.

Troy King, atty. gen., and Felicia M. Brooks, asst. atty. gen., Department of Human Resources, for petitioners.

Larry R. Sasser, Montgomery; and Robert L. Turner, Montgomery, for respondent E.J.

Jan Schroeder Grant, Montgomery, for respondent M.J.

R. Autin Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery; and J. Lisa Impson of the Chickasaw Nation Division of Justice, Ada, Oklahoma, for respondent the Chickasaw Nation.

On Application for Rehearing

THOMPSON, Judge.

In April 2003, the Department of Human Resources ("DHR") removed C.L.J. ("the child") from the custody of her mother, E.J., and placed her in protective custody. At or near that time, the Montgomery Juvenile Court awarded DHR custody of the child. The child, who was almost 3 years old when she was taken into protective custody, has remained in the same foster-care placement with S.R. and B.R. ("the foster parents").

On September 9, 2004, approximately 16 months after the child had been taken into protective custody, the child's maternal great aunt, M.J. ("the great aunt"), filed a petition in this matter alleging that the child was dependent and seeking custody of the child. In her petition, the great aunt stated that she anticipated that DHR would soon seek to terminate the mother's parental rights to the child.

On February 3, 2005, the Chickasaw Nation¹ moved to intervene in the action, alleging that the child is an "Indian Child," as that term is defined in § 1903 of the Indian Child Welfare Act ("the ICWA"), 25 U.S.C. §§ 1901 through -1963, and that the ICWA granted it the right to intervene in the action involving the child. See 25 U.S.C. § 1911(c). It does not appear that the juvenile court was informed that the child might be an "Indian child" under the ICWA before the Chickasaw Nation filed its motion to intervene. In support of its motion to intervene, the Chickasaw Nation submitted a memorandum stating that the mother was "65/256 Chickasaw/Choctaw"; the Chickasaw Nation later alleged that the child was eligible for membership in the Chickasaw Nation.

On February 8, 2005, the mother filed a motion seeking to transfer this action to the Chickasaw Nation tribal court pursuant to the ICWA. DHR, the foster parents, and the child's guardian ad litem all filed objections to the motion to transfer the case to the tribal court; the Chickasaw Nation filed a brief in support of the mother's motion to transfer. The child, who was born on July 11, 1999, was five and a half years old at the time the Chickasaw Nation intervened in this matter and the mother moved to transfer the case to the tribal court.

On March 29, 2005, B.R., the foster mother, petitioned for custody of the child. On April 15, 2005, DHR moved to terminate the parental rights of the mother and of K.J., the child's alleged father.² Later, the foster parents filed a motion to amend B.R.'s petition for custody, seeking to "adopt" DHR's petition to terminate the parents' parental rights; the juvenile court granted the foster parents' motion.³

On August 4, 2005, the juvenile court entered an order denying the mother's motion to transfer the case to the tribal court. In that order, the juvenile court made a number of factual findings and legal determinations, including the determination that the ICWA applied to the facts of this case. Neither the mother nor the Chickasaw Nation sought appellate review of that order.

In December 2005 and January 2006, the parties submitted witness lists to the juvenile court. The great aunt filed on January 12, 2006, a motion seeking a status conference "to schedule trial witnesses." According to the guardian ad litem's filing in this court, the juvenile court scheduled a hearing for a scheduling conference for February 3, 2006. However, on January 26, 2006, the juvenile court entered an order canceling the hearing scheduled for February 3, 2006, and transferring this action to the tribal court.

On February 1, 2006, the guardian ad litem filed a document entitled "Objection to Order Transferring Case to Tribal Court." In that filing, the guardian ad litem argued that the juvenile court had erred in ordering that the case be transferred to the tribal court; the guardian ad litem made a number of factual allegations to support that argument and requested that the juvenile court conduct a hearing on the motion. In substance, the guardian ad litem's February 1, 2006, filing was a postjudgment motion filed pursuant to Rule 59, Ala. R. Civ. P.; therefore, we construe that filing as a postjudgment motion filed pursuant to that rule.⁴ Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562-63 (Ala.2005) ("This Court will look at the substance of a motion, rather than its title, to determine how that motion is to be considered under the Alabama Rules of Civil Procedure."). On February 2, 2006, the juvenile court denied the guardian ad litem's February 1, 2006, postjudgment motion by entering a notation on that motion that stated, "objection noted and denied."

On February 7, 2006, the guardian ad litem filed in this court a motion for an emergency stay of the juvenile court's January 26, 2006, order and a "petition for a writ of mandamus" seeking an order directing the juvenile court to rescind its order transferring the action to the tribal court. On March 7, 2006, this court, in a two sentence order, granted the guardian ad litem's "petition for a writ of mandamus" and directed the juvenile court to rescind its January 26, 2006, order. ____ So.2d ____ (table). The Chickasaw Nation filed in this court an application for rehearing in which it requested that this court clarify the March 7, 2006, order by setting forth the basis on which it was entered. We grant the application for rehearing, and we reverse the order of the juvenile court and remand the cause with instructions.

As an initial matter, we address the purpose of the ICWA and the application of that act in a state court.

"The ICWA was enacted to promote the stability and security of Indian tribes and families through the establishment of 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.

"When Congress enacted the ICWA, it had two main goals: (1) protecting the best interests of the Indian children and (2) promoting the stability and security of Indian tribes and families. See 25 U.S.C. § 1902. The act is based on the assumption that protection of the Indian child's relationship to the tribe is in the child's best interests. Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).

"ICWA § 1911 mandates that the Indian tribe have jurisdiction in all child custody proceedings `involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law.' The ICWA does not, however, divest state courts of their jurisdiction over children of Indian descent living off the reservation. Kiowa Tribe of Oklahoma v. Lewis, 777 F.2d 587 (10th Cir. 1985), cert. denied 479 U.S. 872, 107 S.Ct. 247, 93 L.Ed.2d 171 (1986). State courts may exercise jurisdiction concurrently with the tribal courts in regard to those Indian children who do not reside and are not domiciled on their tribe's reservation; however, a state court must refer the matter to a tribal court unless good cause is shown for the retention of state court jurisdiction. See 25 U.S.C. § 1911(b).

". . . .

"That a state court may take jurisdiction does not necessarily mean that it should do so, as the court should consider the rights of the child, the rights of the tribe, and the conflict of law principles, and should balance the interests of the state and the tribe. See Application of Bertelson, 189 Mont. 524, 617 P.2d 121 (1980)."

In re C.W., 239 Neb. 817, 825-26, 479 N.W.2d 105, 112-13 (1992) (emphasis added).

In In re C.W., supra, the Nebraska Supreme Court went on to discuss the federal guidelines pertaining to whether good cause exists for a state court to retain jurisdiction rather than transfer the matter to a tribal court:

"The Bureau of Indian Affairs has published nonbinding federal guidelines interpreting the ICWA's definition of `good cause to the contrary' as including, but not limited to, cases where (1) the proceeding is at an advanced stage when the petition to transfer is received, and the petition is not promptly filed after receipt of notice; (2) the Indian child is over the age of 12 and objects to the transfer; (3) evidence necessary to decide the case cannot be adequately presented to the tribal court without undue hardship to the witnesses and parties; and (4) the parents of an Indian child over the age of 5 are not available, and the child has had little or no contact with the child's tribe or members of the child's tribe. Additionally, the guidelines specify that socioeconomic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in determining whether good cause exists. The burden of establishing good cause shall be on the party opposing the transfer. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,591 (1979) (not codified).

"The third element of the guidelines has been applied to deny transfer due to considerations of forum non conveniens, such as availability of witnesses and access to proof. See In Interest of J.R.H., 358 N.W.2d 311 (Iowa 1984). . . ."

239 Neb. at 826-27, ...