Puyallup Tribe of Indians v. State (In re M.S.)

• Decision Date: 15 June 2010
• Docket Number: No. 103,921,103,921
• Citation: 237 P.3d 161,2010 OK 46
• Parties: In the Matter of M.S. and K.S., Deprived Children. Puyallup Tribe of Indians, Plaintiff/Appellant, v. State of Oklahoma, Defendant/Appellee
• Court: Oklahoma Supreme Court

237 P.3d 161

2010 OK 46

In the Matter of M.S. and K.S., Deprived Children.

No. 103,921

Supreme Court of Oklahoma

June 15, 2010

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Michael E. Yeksavich, Yeksavich Law Office, Tulsa, OK, and Debra W. MceCormick, Eugene K. Bertman, Jennifer McBee, Ru-benstein McCormick & Pitts, P.LL.C., Edmond, OK, for Appellant.

Jerry S. Moore, District Attorney, Gary Huggins, Assistant District Attorney, Michael J. Spychalski, Assistant District Attorney, Wagoner, OK, for Appellee.

Amy B. McFarland, Wagoner, OK, for Minor Children.

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OPINION

WATT, J.:

11 In this case we consider a jurisdictional dispute between the tribal court of the Puyallup Tribe of Indians and the courts of this state involving the placement of two Indian children, M.S. and K.S. We previously granted certiorari. We reverse and remand.

FACTS

T2 This case began as a deprived child proceeding in August, 2004, when an emer-geney petition was filed by the State of Oklahoma, ex rel. Department of Human Services, to remove M.S. and K.S. ("the children"), and their two older half-siblings, AH. and KH., from their parents' home. M.S. and K.S. are registered members of the Puyallup Tribe of Indians (the Tribe), as is their father. All of the children have the same mother, who is of Cherokee descent, but the two older children have a different father. All four children were placed in a foster home together, but the oldest child, A.H., an enrolled Cherokee member, moved to Texas to live with her biological father. M.S. and K.S. remained in the foster home with their older brother, KH., also a Cherokee member,¹ for approximately two years. On June 21, 2006, the parental rights of M.S.'s and K.S.'s parents were terminated. The Tribe then filed a petition to transfer the case to its tribal court in Tacoma, Washington, or alternatively, for placement of M.S. and K.S. with their great aunt in Florida, in compliance with the placement preferences in subchapter one of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1923, specifically 25 U.S.C. § 1915(b)² The trial court denied its requests, and the Tribe appealed. The Court of Civil Appeals ("COCA") affirmed.

T3 The foster parents (the Simmons) have expressed an interest in adopting KH., M.S. and KS., although no petition for adoption had been filed as to M.S. and K.S. at the time this appeal was commenced on October 26, 2006. During the pendency of this appeal, M.S. and K.S. were placed with their great aunt in Tampa, Florida.³

T4 After the termination case concluded, the State gave notice to the Simmons of a change in placement. The Simmons filed an objection to removal of the children from their home and requested a hearing. Notice of the hearing was not sent to the Tribe. Although it learned of the hearing, it complains it did not have time to file a written response. After the Simmons' objection to removal was sustained, the court considered the Tribe's motions for transfer and change of placement. After a hearing on September 21, 2006, the trial court denied the Tribe's requested relief. In its September 28, 2006, Order Overruling Petition to Transfer to Tribal Court and Overruling Motion for Placement, the trial court held:

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There is good cause for the Court to decline to transfer jurisdiction to the Pu-yallup Tribe due to the length of time that the State of Oklahoma has exercised jurisdiction prior to the tribe's motion and the relationships established between the children and their foster parents, their attorney, their CASA, DHS social workers, and medical providers. - Furthermore, most relevant evidence regarding the children is located in the State of Oklahoma.

15 The Tribe's alternative Motion for Placement, in which the Tribe requested placement with the children's biological great aunt residing in Florida, a Puyallup tribal member, was overruled in the same order.

T6 At issue in this case is whether COCA correctly interpreted the ICWA when it affirmed the trial court's order denying the Tribe's motion to transfer jurisdiction to tribal court and its alternative motion for relative placement during the pre-adoption stage of these proceedings. We hold COCA erred: (a) by interpreting the ICWA to preclude tribal court jurisdiction after the parental rights to two Indian children were terminated, (b) by finding "good cause" not to transfer, and (c) by failing to use the "clear and convincing" evidence standard in its review of the trial court's finding of "good cause" to deny the Tribe's requests. We previously granted the Tribe's petition for certiorari. We reverse and remand.

JURISDICTION

T7 For purposes of the ICWA, tribal courts have exclusive jurisdiction over "child custody proceedings" involving Indian children who are domiciled within the reservation. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 80, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989) (Holyfield); 25 U.S.C. § 1911(a) of the ICWA.⁴ Indian children of parents domiciled on the reservation are also considered domiciled on the reservation. This was the Court's holding, although the parents tried to avoid the ICWA by going off the reservation for the child's birth., Holyfield, 490 U.S. 30, 48-49, 109 S.Ct. 1597, 1608. Thus, because Indian children born off the reservation were considered domiciled on the reservation, the tribal court had exclusive jurisdiction of a voluntary adoption by non-Indian adoptive parents. Holyfield, 490 U.S. 30, 49, 109 S.Ct. 1597, 1609.

18 In contrast to the present case, it is undisputed that neither M.S., K.S., nor their parents, resided on the reservation. We must therefore consider 25 U.S.C. § 1911(b)⁵ which concerns jurisdiction over "child eusto-dy proceedings" for non-domiciliary Indian children. The Tribe contends transfer to tribal court may oceur in this case, absent good cause to the contrary. The State responds that although § 1911(a) applies to "any child custody proceeding"⁶ Involving an

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Indian child, § 1911(b) applies only to transfers of "foster care placement" or "termination of parental rights" proceedings. [emphasis added]

T9 The trial court's denial of transfer to tribal court was based on its findings of "good cause to the contrary," as noted above, but not because the Tribe's transfer request came after the termination proceeding ended. However, in support of the trial court's judgment, the State argued on appeal that because the Tribe did not move to transfer this case to tribal court at the time of the foster care placement or termination of parental rights proceedings, transfer was not required or allowed under $ 1911(b). COCA agreed.

110 The record indicates the timeliness of the motion to transfer jurisdiction was not raised in the trial court but was first raised on appeal. The Tribe argued it could not be considered. COCA held that if the Tribe, as the Appellant, had raised an issue for reversal for the first time on appeal, consideration of it would be foreclosed, but that an Appel-lee is free to raise an argument which provides an additional reason to affirm the judgment, citing McMinn v. City of Oklahoma City, 1997 OK 154, 952 P.2d 517.

111 Regardless of the trial court's reasoning, COCA's construction of § 1911(b) constitutes a question of law which affects the intent and purpose of the ICWA. COCA's opinion also denies tribal court jurisdiction over an ICWA proceeding involving two members of its tribe, in favor of Oklahoma courts. It therefore affects our jurisdiction, as well.

a. Purpose of the ICWA

112 At issue then is whether § 1911(b) should be construed so narrowly and whether this construction complies with Congressional intent and the purpose of the ICWA. In arguing that the specific inclusion in § 1911(b) of only "foster care placement" and "termination of parental rights" proceedings indicates an intent to exclude transfers of the other "child custody proceedings" defined by 25 U.S.C. § 1903,⁷ the State promotes the rule of "expressio unius est exclusio alteri-ws," ie., the mention of one thing in a statute implies exclusion of something else. See gen., Spiers v. Magnolia Petroleum Co., 1951 OK 276, T21, 206 Okla. 510, 244 P.2d 852, 856. However, the rule should be applied only as an aid in arriving at intention and should never be followed when doing so would override the intended purpose of the act. Public Service Company of Oklahoma v. State ex rel. Corporation Commission, 1992 OK 153, 842 P.2d 750. COCA agreed with the State that a transfer to tribal court at the "preadoptive placement" stage was precluded because § 1911(b) does not mention it. We acknowledge § 1911(b) mentions transfers of only "foster care placement" and "termination of parental rights" proceedings "in the absence of good cause to the contrary...." We must therefore determine whether Congress intended to exclude transfers of "pre-adoptive placement" and "adoptive placement" proceedings to tribal court.⁸

[13 We must read § 1911(b) as it is written. The court "shall transfer" foster care placement and termination of parental rights proceedings absent objections and a showing of good cause to the contrary. Reading what is contained in the statute, however, does not require us to read into the statute what is not there, ie., that transfers may only be granted if requested before a termination of parental rights proceeding is concluded.

14 When considering the ICWA as a whole, as we must, we first look to the Congressional declaration of policy stated in 25 U.S.C. § 1902,⁹ ie., the protection of the best

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interests of Indian children, the stability and security of Indian tribes and families, and the preservation of Indian values and culture to be reflected in the placement of Indian children in foster and adoptive homes. [emphasis added] The Supreme Court considered this statement of policy and purpose in Holyfield upon determining that Congress did not intend to rely on state law for the definition of "domicile":

[I]t is clear from the very text of the ICWA, not to mention its legislative history and the...