In re SNK

• Decision Date: 04 November 2003
• Citation: 78 P.3d 1032,2003 WY 141
• Parties: In the Interest of SNK, a minor child. Northern Arapaho Tribe, Appellant (Intervenor), v. The State of Wyoming, Department of Family Services, Appellee (Petitioner).
• Court: Wyoming Supreme Court

78 P.3d 1032

2003 WY 141

In the Interest of SNK, a minor child.

Northern Arapaho Tribe, Appellant (Intervenor), v. The State of Wyoming, Department of Family Services, Appellee (Petitioner).

No. C-03-5.

Supreme Court of Wyoming.

November 4, 2003.

Representing Appellant: Andrew Baldwin and Christopher J. Schneider of Baldwin & Crocker, P.C., Lander, WY. Argument by Mr. Schneider.

Representing Appellee: Patrick J. Crank, Attorney General; Michael L. Hubbard, Deputy Attorney General; Dan S. Wilde, Senior Assistant Attorney General; and Sandra Siel Kitchen, of Copenhaver, Kath & Kitchen, LLC, Powell, WY as Guardian ad Litem for SNK. Argument by Mr. Wilde.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] Appellant, the Northern Arapaho Tribe (Tribe), seeks review of the district court's order continuing the placement of the minor child involved in this case, SNK, in a non-Indian foster home. Essentially, the Tribe argues that the district court in rendering its decision improperly determined that the "existing Indian family" exception to the Indian Child Welfare Act (ICWA) applied. After our review, we hold that the issues presented are moot.

ISSUES

[¶ 2] The Tribe raises the following issues on appeal:

1. Did the district court err in holding that [ICWA] was not applicable to this case?

2. Did the district court provide proper notice to all parties?

3. Did the district court comply with the Due Process requirements of the Wyoming State Constitution?

4. Did the district court comply with the Due Process requirements of the United States Constitution?

Appellee, State of Wyoming, Department of Family Services (State), phrases the issues on appeal as:

I. Whether an order from a 12 month review hearing issued in a juvenile proceeding that has not progressed to an adjudicatory hearing is a final order for purposes of an appeal.

II. Whether the juvenile court's statement that [ICWA] was not applicable equates to the adoption of the "existing Indian family exception" to [ICWA].

III. Whether the juvenile court's statement that [ICWA] is not applicable to this matter presents a justiciable controversy for the court to adopt or reject the "existing Indian family exception."

FACTS

[¶ 3] SNK is an enrolled member of the Tribe as is her biological father. However, SNK's biological mother and ex-stepfather are non-Indian. SNK's biological parents were never married. Nevertheless, SNK lived with her biological mother and biological father for four months during the first year of her life. SNK has had very limited contact with her biological father since that time. SNK's biological mother and her ex-stepfather were married in 1994, and SNK resided with both of them or either of them, individually, for most of her life.¹ SNK's biological mother and ex-stepfather were divorced in 2001; but SNK, her biological mother, and her ex-stepfather still maintain very close relationships. SNK also has three stepsiblings by virtue of the union between her biological mother and her ex-stepfather. SNK has resided with these stepsiblings for a substantial period of her life, and has a close relationship with each of them.

[¶ 4] In March of 2001, the State filed a juvenile neglect proceeding against SNK's biological mother. At the time the State did not know the whereabouts of either SNK's biological mother or biological father. The district court, therefore, ordered legal and physical custody to SNK's ex-stepfather under the supervision of the State. In August of 2001, the district court learned that SNK was living with her biological mother in Baker, Montana. Following this discovery, the district court found that SNK's ex-stepfather had violated its order and that continued placement of SNK in his home would not be in her best interests and thus placed SNK in a foster home.

[¶ 5] In February 2002 the Tribe was allowed to intervene in the action. Upon its intervention, the Tribe did not question the jurisdiction of the district court or file a motion to remove this matter to a different tribunal. Rather, the Tribe has participated as a party, including participation in the multi-disciplinary team (MDT) meetings.

[¶ 6] On October 17, 2002, the district court held a twelve-month review hearing. At this hearing the district court took evidence and heard testimony from various individuals, including SNK's mental counselor. Argument was also presented that the "existing Indian family" exception to ICWA applied. Near the conclusion of this hearing, the district court stated:

Okay. And I will go ahead and enter the order at this point, having considered all of the testimony presented and the arguments and the legal authorities cited. This Court also has considerable familiarity with the Indian Child Welfare Act. And the Court will find that, first of all, the Indian Child Welfare Act is not applicable in this instance for the reasons cited and the cases cited and the law cited by [the appointed guardian ad litem for SNK] and by [counsel for the biological mother of SNK].

The Court will find that it is in the best interests of the child that she remain in the present placement until further order of the Court, and will make the necessary findings for the 12-month review as required by law.

The Court will still consider the primary goal, until further order of the Court, to be reconciliation with the mother, in whose custody she was in before all of this started, and, as an alternative to that, will consider placement in the home of [the ex-stepfather].

...

... We don't have the home study yet, and of course we don't know what that's going to say; we haven't seen it yet. But we do know that this child has said that she—her first choice was to live with her mother. She would also like to be with her siblings. And the Court does have some concern, in the event that the home study on [the ex-stepfather] is—does not indicate the viability of a placement there, and not knowing how long the mother may continue to be incarcerated or unavailable or whether she'll be ready to take custody upon her release, I think that it also is necessary that the court order a home study of the home on the reservation that was mentioned by Mr. Trosper.[²]

The district court entered its written order on December 9, 2002, finding "that the Indian Welfare Act (ICWA) is not applicable in this matter." The Tribe, having unsuccessfully moved for reconsideration, now appeals.

[¶ 7] Subsequent to the filing of appeal, the district court held a hearing on February 4, 2003, and ruled that SNK should be placed in the home of her ex-stepfather until further "permanency" proceedings could be held. All parties to this action, including the Tribe, agreed with SNK's temporary placement as ordered. The Tribe, however, continues to object to any aspect of the proceedings that fail to apply the provisions of ICWA.³

STANDARD OF REVIEW

[¶ 8] In Ekberg v. Sharp, 2003 WY 123, ¶ 10, 76 P.3d 1250, ¶ 10 (Wyo.2003) (citing Carroll v. Bergen, 2002 WY 166, ¶ 9, 57 P.3d 1209, ¶ 9 (Wyo.2002) and Springer v. Blue Cross & Blue Shield of Wyoming, 944 P.2d 1173, 1175-76 (Wyo.1997)), we stated:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence. Findings of fact will not be set aside unless the findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. We review a district court's conclusions of law de novo on appeal.

DISCUSSION

Appealable Order

[¶ 9] Initially the State contends the district court's order is not an appealable order and that the Tribe cannot only appeal the district court's ruling on ICWA. The Tribe counters by arguing that the district court's ruling effectively denies it the right to intervene in the case, thereby depriving the Tribe of its federally recognized interest in protecting the best interests of its children, Indian culture, and way of life. The Tribe also asserts that pursuant to W.R.A.P. 1.05, the district court's order must be considered an appealable order because it affected a substantial right of the Tribe and, in effect, determined this action.⁴

[¶ 10] We do not find the Tribe's argument that it has been effectively denied an opportunity to participate as an intervening party by virtue of the district court's order persuasive. As indicated earlier, the Tribe was allowed to intervene in this action as specifically provided for by ICWA. 25 U.S.C. § 1911(c). Since being allowed to intervene, the Tribe has actively participated as a party, making appearances at hearings and at MDT meetings. Indeed, when asked by the district court at the review hearing held subsequent to the appeal in this case if the Tribe desired to continue as a party in the action, the Tribe indicated through its attorney that it certainly desired to participate as a party and the Tribe was allowed to do so. Furthermore, the Tribe has not contested the jurisdiction and authority of the district court and has not attempted to remove this action to a different tribunal. See 25 U.S.C. § 1911(b). The Tribe received due process when it was notified of the twelve-month review hearing and was allowed to participate in that hearing.

[¶ 11] However, we hold that the district court's order ruling that ICWA was not applicable in this case does sufficiently affect a substantial right of the Tribe pursuant to W.R.A.P. 1.05(b). The very purpose for Congress' enactment of ICWA was to protect the best interests of Indian children and to promote the stability...