In re Adoption of C.D.

• Citation: 751 N.W.2d 236,2008 ND 128
• Decision Date: 26 June 2008
• Docket Number: No. 20070171.,20070171.
• Parties: In the Matter of the ADOPTION OF C.D. K.D., Petitioner and Appellant v. M.L., Respondent and Appellee and Oglala Sioux Tribe, Intervenor and Appellee.
• Court: United States State Supreme Court of North Dakota

751 N.W.2d 236

2008 ND 128

In the Matter of the ADOPTION OF C.D. K.D., Petitioner and Appellant v. M.L., Respondent and Appellee and Oglala Sioux Tribe, Intervenor and Appellee.

No. 20070171.

Supreme Court of North Dakota.

June 26, 2008.

Paul R. Sanderson, Zuger, Kirmis & Smith, Bismarck, N.D., for petitioner and appellant.

Bradley D. Peterson (appeared), Bismarck, N.D., for respondent and appellee.

B.J. Jones, Grand Forks, N.D., for intervenor and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] K.D. ("Karen") appealed from a district court judgment dismissing her petition to terminate the parental rights of M.L. ("Mary"). We reverse and remand, concluding the district court erred in determining that the Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901-1963, applied in this case.

I

[¶ 2] Mary and E.D. ("Edward") are the biological parents of C.D. ("Chad"), who was born in 1993. Karen is married to Edward and is Chad's stepmother. Although Chad initially resided with Mary after his birth, he was removed from her custody upon a petition by Morton County Social Services in 1996. Edward was awarded full legal and physical custody in 1997, and Chad has lived with Edward and Karen since that time.

[¶ 3] Mary's father was a full-blood Native American and was an enrolled member of the Oglala Sioux Tribe ("Tribe"). Mary is one-half Oglala Sioux blood and Chad is one-quarter Oglala Sioux blood. Mary has never been an enrolled member of the Tribe, but had filed an application for enrollment which was pending at the time of the hearing in this case.

[¶ 4] In May 2004, Karen filed petitions to adopt Chad and to terminate Mary's parental rights. Mary moved to dismiss the petitions, alleging Chad was an Indian child and Karen had failed to comply with the notice requirements of ICWA. Following a hearing, at which Karen argued that ICWA did not apply, the district court continued the matter and directed Karen's counsel to provide notice of the proceedings to the Tribe. Karen provided notice to the Tribe, and the Tribe served motions to intervene and to transfer jurisdiction to the Oglala Sioux Tribal Juvenile Court and dismiss the state case. The district court granted the Tribe's motion to intervene, but denied its motion to transfer jurisdiction and dismiss the case.

[¶ 5] An evidentiary hearing was held on Karen's petitions on March 20, 2007. At the conclusion of Karen's case-in-chief Mary moved for judgment as a matter of law, arguing Karen had failed to meet the heightened evidentiary standards required under ICWA to terminate her parental rights. Karen again argued ICWA did not apply because there was no evidence establishing Chad was an "Indian child" as defined by ICWA. The court concluded that ICWA applied and that Karen had failed to meet ICWA's heightened burden of proof. The court accordingly dismissed the petition to terminate Mary's parental rights and found it unnecessary to consider Karen's petition to adopt Chad. Karen appealed.

II

[¶ 6] ICWA was enacted, in part, to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families." 25 U.S.C. § 1902. Thus, when termination of parental rights to an Indian child is sought, the party seeking termination must satisfy the requirements of both the state statutory scheme and the more stringent requirements of ICWA.

[¶ 7] We have summarized the dual burdens placed upon petitioners seeking termination of parental rights to an Indian child:

Those state and federal provisions create a dual burden of proof for a party seeking to terminate the parental rights of a parent of an Indian child. "Under N.D.C.C. § 27-20-44(1)(b)(1) the juvenile court may terminate parental rights if a child is deprived, the conditions and causes of the deprivation are likely to continue, and the child is suffering, or will in the future probably suffer serious physical, mental, moral, or emotional harm." In re D.Q., 2002 ND 188, ¶ 19, 653 N.W.2d 713. A party seeking termination of parental rights must prove all the necessary elements by clear and convincing evidence. Under 25 U.S.C. § 1912(d), a petitioner must demonstrate, "by clear and convincing evidence that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and those efforts were unsuccessful." In re M.S., [2001 ND 68, ¶ 18, 624 N.W.2d 678]. Under 25 U.S.C. § 1912(f), a petitioner must prove continued custody of a child by a parent or Indian custodian is likely to result in serious emotional or physical damage to the child by proof beyond a reasonable doubt.

In re J.P., 2004 ND 25, ¶ 7, 674 N.W.2d 273 (citations omitted). Thus, the elements of state law must be proven by clear and convincing evidence, but ICWA's requirement that continued custody of the child would likely result in serious emotional or physical damage to the child must be satisfied with proof beyond a reasonable doubt. In re T.F., 2004 ND 126, ¶ 7, 681 N.W.2d 786; In re M.S., 2001 ND 68, ¶ 4, 624 N.W.2d 678.

[¶ 8] The district court in this case concluded that ICWA applied and that Karen had failed to meet ICWA's higher burden of proof. Karen does not challenge the court's determination that she did not meet the requirements for termination under ICWA, but on appeal argues only that ICWA does not apply in this action because Chad is not an "Indian child" as defined by ICWA.

[¶ 9] ICWA's heightened standards for termination of parental rights apply only if an Indian child, as defined in the Act, is involved, and the district court must make a threshold determination that an Indian child is involved in the case. See, e.g., 25 U.S.C. § 1912; In re A.G.-G., 899 P.2d 319, 321 (Colo.Ct.App.1995); In re A.W., 741 N.W.2d 793, 807 (Iowa 2007); In re Anderson, 176 Or.App. 311, 31 P.3d 510, 512 (2001). "Indian child" is defined in 25 U.S.C. § 1903(4):

"Indian child" means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

[¶ 10] The parties agree that Chad is not a member of the Tribe, and subsection (a) of the statute does not apply. Mary and the Tribe allege Chad is an Indian child under 25 U.S.C. § 1903(4)(b) because Chad is eligible for membership in the Tribe and Mary, his biological mother, is a member. Karen argues that Mary and the Tribe failed to present any evidence that Mary was a member of the Tribe or that Chad was eligible for membership, and therefore Chad is not an Indian child under 25 U.S.C. § 1903(4)(b) and ICWA does not apply.

III

[¶ 11] Before we consider the issue Karen raises on appeal, we address the Tribe's assertion that Karen waived any challenge to the applicability of ICWA when she failed to timely object to the Tribe's motion to intervene in the district court.

[¶ 12] Resolution of this issue requires an explanation of the somewhat convoluted proceedings in this case. Karen filed her petitions for termination of Mary's parental rights and for Chad's adoption in May 2004. At a July 8, 2004, hearing on the petitions, the court continued the matter and appointed counsel for Mary. In October 2004, Mary moved to dismiss the petitions because Karen had failed to comply with the notice requirements under ICWA. See 25 U.S.C. § 1912(a). Karen opposed the motion, arguing ICWA did not apply because Chad was not an Indian child under the Act. A second hearing on the petitions was held on November 15, 2004, and the court again continued the hearing and directed Karen's attorney to serve notice of the proceedings upon the Tribe and to schedule another hearing. On November 24, 2004, Karen's counsel served notice upon the Tribe and Mary, advising that a hearing on the petitions would be held on January 4, 2005.

[¶ 13] The Tribe did not file any written response to the notice prior to the January 4, 2005, hearing, and no representative of the Tribe appeared at the hearing. Mary's counsel indicated at the hearing that he had contacted the Tribe the previous day and the Tribe had faxed to him copies of a motion to intervene and a motion to transfer jurisdiction to the Oglala Sioux Tribal Juvenile Court. Although dated December 16, 2004, the documents had not been filed with the court or served upon Karen. Karen argued the Tribe should not be allowed to intervene because ICWA did not apply and because the Tribe had failed to timely move to intervene. Over Karen's counsel's objection, the court again continued the matter and allowed the Tribe five days to file the original documents with the court. The court, however, further held that it was granting the Tribe's motion to intervene and would delay ruling on the motion to transfer jurisdiction. The Tribe finally filed its motions with the court on January 11, 2005. Karen filed a brief objecting to the Tribe's motion to transfer jurisdiction, but did not file a written response to the motion to intervene, which the court had already granted.

[¶ 14] The Tribe contends that Karen's failure to file a separate written objection to the motion to intervene after the Tribe properly filed the motion constitutes a waiver of her objection to application of ICWA in this case. The record indicates, however, that Karen raised these specific challenges to ICWA's applicability at the January 4, 2005, hearing when the court considered and ruled upon the Tribe's unfiled motion. Karen has consistently throughout these proceedings, up to and including the final evidentiary hearing, argued that Chad is not an Indian child and ICWA does not apply. We conclude Karen adequately objected to the Tribe's motion and did not waive her right to contest ICWA's applicability.

[¶ 15] Because we conclude Karen adequately objected to the...