M.C.P., In re

• Decision Date: 08 December 1989
• Docket Number: No. 87-074,87-074
• Citation: 571 A.2d 627,153 Vt. 275
• Parties: , 58 USLW 2507 In re M.C.P., Juvenile.
• Court: Vermont Supreme Court

Page 627

571 A.2d 627

153 Vt. 275, 58 USLW 2507

In re M.C.P., Juvenile.

No. 87-074.

Supreme Court of Vermont.

Dec. 8, 1989.

Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Michael O. Duane, Asst. Atty. Gen., Waterbury, for plaintiff-appellee.

Valsangiacomo, Detora, McQuesten, Rose & Grearson, Barre, for defendant-appellant R.P.

Nancy J. Creswell of Paterson & Walke, Montpelier, and Marc Eagle, Tunbridge, for defendant-appellant D.P.

David Putter of Saxer, Anderson, Wolinsky & Sunshine, Montpelier, for collateral appellant E.P.

Before ALLEN, C.J., PECK and DOOLEY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

DOOLEY, Justice.

The mother and father, D.P. and R.P. (parents), appeal the juvenile court's finding that their adopted daughter M.C.P. (juvenile) is a child in need of care and supervision and the court's disposition order granting legal custody to the Department of Social and Rehabilitation Services. The mother, D.P., argues: (1) the parties seeking termination of parental rights failed to comply with the notice requirement of the Indian Child Welfare Act, 25 U.S.C. § 1912(a) (1982 & Supp. IV 1986), even though the trial court knew that the juvenile was an Indian child; (2) the trial court failed to issue timely merits findings prior to the disposition hearing and failed to issue disposition findings; (3) the trial court failed to issue timely written findings after the merits and disposition hearings, and as a result, D.P. was denied her statutory right to a speedy resolution of this dispute; (4) the findings of fact by the trial court are unsupported by the evidence and are so flawed as to be clearly erroneous; and (5) the disposition order violates her Fifth Amendment privilege against self-incrimination because it requires her to admit abuse of the juvenile in order to regain custody of her child. The father, R.P., adopts by reference the mother's arguments and argues in greater detail the findings of fact issue. The brother of the juvenile, E.P., also raises several issues on appeal. We remand, instructing the juvenile court to notify the Mohawk Indian Tribe for the purpose of determining whether the juvenile is a member of that tribe. Should the Indian Child Welfare Act not apply, we affirm the merits and disposition orders after deleting a phrase from the disposition order. In response to E.P.'s appeal, we order that a paragraph of the order relating to E.P. be stricken.

I.

The following is a condensed version of the facts and the history of this case. The discussion of each issue is accompanied with a more detailed factual statement relevant to that issue. The juvenile was born in Massachusetts in 1974. During her early years, she was physically and sexually abused by her natural parents. At the age of five, the Massachusetts social services agency removed the juvenile from the home of her natural parents and placed her in the foster care of several families and finally with D.P. and R.P. The juvenile's natural brother, E.P. (brother), was also removed at that time and placed with D.P. and R.P. The juvenile and her brother were adopted by D.P. and R.P. in 1984. A short while later, the family moved from Massachusetts to Vermont.

In November of 1986, the juvenile ran away from her home by jumping from a second story window and went to a neighbor's house. She told the neighbor that she had been physically and sexually abused by her adoptive parents. The neighbor called the police who took the child into custody. Temporary custody was granted to the Department of Social and Rehabilitation Services (SRS) following a detention hearing. In December of 1986, a hearing on the merits was held and the court determined that the juvenile was a child in need of care and supervision (CHINS). That determination was made on a form entitled "Findings and Order " and contained as findings of fact: "as set forth in the petition and affidavit." The reference was to a petition and brief affidavit submitted by SRS on November 23, 1986.

A disposition hearing was held in January, 1987 after which the court granted legal custody to SRS with residual parental rights and responsibilities remaining in the parents. There were no disposition findings.

After the appeal was filed, the parties stipulated to a remand for additional evidence. Following an additional hearing, the court issued findings of fact and conclusions of law again adjudicating that the juvenile was a CHINS and again placing custody with SRS.

Visitation disputes led to a contempt petition by the parents in December of 1987. The parties agreed that the hearing on the petition could be used to fashion a disposition order to cure the lack of disposition findings. On April 11, 1988, the court issued findings and conclusions relating to disposition. The disposition order retains custody with SRS and allows visits by the parents only if the juvenile desires them.

The disposition order also provided for visitation between the juvenile and her brother, E.P., "in a controlled setting by SRS." At that point, the brother sought to intervene to oppose forced visitation between him and the juvenile. The court allowed the intervention and issued an order giving the brother partial relief. He has appealed the order to this Court.

II.

Appellants' first claim of error is that the trial court failed to comply with the notice requirement of the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963 (1982 & Supp. IV 1986). This is the first time we have had occasion to examine the ICWA.

During the late 1970's, Congress became concerned that "an alarmingly high" number of Indian families were being broken up by nontribal agencies who removed the children from their families and often placed them in non-Indian homes and institutions. 25 U.S.C. § 1901(4). In most instances, the children were being removed from their families "on such vague grounds as 'neglect' or 'social deprivation,' " and it was only on rare occasions that the Indian children were removed because of physical abuse. H.R.Rep. No. 1386, 95th Cong. 2d Sess. 10, reprinted in 1978 U.S.Code Cong. & Admin.News 7530, 7532. Members of Indian communities who had regarded these children's parents as excellent caregivers were often shocked to learn that the parents had been found unfit by non-Indian social workers. Id. Congress concluded that the states "often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families" during child custody proceedings. 25 U.S.C. § 1901(5).

Pursuant to its plenary power over Indian affairs, Congress enacted the ICWA in 1978 in order to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." 25 U.S.C. § 1902. Congress achieved these goals by establishing "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." Id. The clear policy of the ICWA is that Indian children should remain in the Indian community. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, ----, 109 S.Ct. 1597, 1602, 104 L.Ed.2d 29 (1989).

In essence, the minimum standards established by Congress to promote the best interests of Indian children follow two different schemes. First, in many instances, the jurisdiction of Indian child custody proceedings ¹ is transferred from the state court to the Indian child's tribe. 25 U.S.C. § 1911(b). In cases where the Indian child is not a resident of his or her tribal reservation, the state may retain jurisdiction over the child only by a showing of "good cause," an objection to the transfer by either parent, or a declination of jurisdiction by the tribe. Id. Second, when the custody proceeding remains in the state court, the tribe can intervene as a party, and the ICWA sets out standards that must be met before an Indian child can be placed in foster care or before parental rights can be terminated. Id. § 1912(e), (f). The ICWA also establishes "preferences" for the placement of the Indian child. Id. § 1915.

Because of the tribe's extensive rights in an Indian child custody proceeding, the ICWA requires that notice be given to the child's tribe of the pending proceeding and of the tribe's right of intervention. Id. § 1912(a). Specifically, the Act requires that:

In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.

Id. The trial court never provided notice as required under this section. The parents in this case claim that this case falls within the ICWA and that § 1912 required the trial court to notify the appropriate Indian tribe.

In order to evaluate this claim, we must examine the limits of ICWA applicability. Although the ICWA provides broad protections in child custody cases, there are limits to its applicability. By their terms,...