R.B. v. State Dept. of Human Resources

• Decision Date: 08 September 1995
• Citation: 669 So.2d 187
• Parties: R.B. and P.B. v. STATE DEPARTMENT OF HUMAN RESOURCES. (In the Matter of W.J.B.). R.B. and P.B. v. STATE DEPARTMENT OF HUMAN RESOURCES. (In the Matter of J.C.B.). 2940259, 2940260.
• Court: Alabama Court of Civil Appeals

Page 187

669 So.2d 187

R.B. and P.B. v. STATE DEPARTMENT OF HUMAN RESOURCES.

(In the Matter of W.J.B.).

R.B. and P.B. v. STATE DEPARTMENT OF HUMAN RESOURCES.

(In the Matter of J.C.B.).

2940259, 2940260.

Court of Civil Appeals of Alabama.

Sept. 8, 1995.

Malcolm R. Newman, Dothan, for Appellants.

William Prendergast and Lynn Sensabaugh Merrill, Asst. Attys. Gen., Department of Human Resources, for Appellee.

SAM A. BEATTY, Retired Justice.

The parents, R.B. and P.B., appeal from a judgment denying their petition to terminate their parental rights to two of their adopted children. We reverse and remand.

In 1986, the parents adopted five Native American children, who were members of the Oglala Sioux Tribe in Pine Ridge, South Dakota. The two oldest children were boys, and the three youngest children were girls. The parents contacted their local county office of the Department of Human Resources ("DHR") in 1992 because, they said, their problems with the children's behavior had escalated to the point that the family required assistance. DHR worked with the family for over a year, but in December 1993 the parents filed petitions to terminate their parental rights to all five of the children, alleging that they were unable to discharge their responsibilities to and for the children. DHR removed the children from the home and placed them in foster care; the parents were ordered to pay child support. DHR located a Native American family with Cherokee ties that was willing to care for the three girls, but had difficulty finding long-term foster care placement for the two boys, who were at that time 17 and 14 years old.

In April 1994, the Oglala Sioux Tribe filed motions to intervene in the case and to transfer jurisdiction to the tribe pursuant to the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1934 (1983) ("ICWA"). The trial court denied the Tribe's motions, but allowed representatives of the Tribe to attend a hearing in August. In addition, the children's maternal aunt, who is a member of the Oglala Sioux Tribe, filed a petition for custody of the children. Thereafter, the trial court terminated the parental rights of the parents to the three girls, whose foster parents wished to adopt them, but refused to terminate the parental rights of the parents to the two boys because there was no adoptive resource for them. The trial court did not refer to the ICWA or to the petition of the maternal aunt in its order relative to the boys.

The parents contend on appeal that the trial court erred in denying their petition to terminate their parental rights on the ground that there was no adoptive resource, that the trial court erred in refusing to transfer jurisdiction to the Oglala Sioux Tribe, and that they are due a refund of child support paid to DHR if they prevail.

We first address the jurisdictional issue. DHR argues that because the Tribe did not appeal the trial court's denial of its motions to intervene and to transfer jurisdiction, the parents cannot raise that issue. We agree. In McCulloch v. State Dep't of Human Resources, 536 So.2d 68, 71 (Ala.Civ.App.1988), this court held that an appellant cannot raise an issue affecting a non-appealing party. Because the lack of subject matter jurisdiction may be raised at any time, however, by any party or by the court before which the case is tried or to which an appeal has been taken, Hanlon v. Mooney, 407 So.2d 554 (Ala.Civ.App.), rev'd on other grounds, Ex parte Hanlon, 407 So.2d 559 (Ala.1981), we have reviewed the jurisdictional requirements of the ICWA.

Section 1911(b) of the ICWA provides as follows:

"In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe...."

The ICWA does not completely divest state courts of their jurisdiction over children of Indian descent who do not live on a 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). The "good cause" exception authorizing transfer from a state court to the tribal court allows state courts to apply a modified version of the forum non conveniens doctrine when deciding whether to retain or transfer jurisdiction of Indian child custody proceedings. In re Maricopa Cty. Juvenile Action No. JS-8287, 171 Ariz. 104, 828 P.2d 1245 (Ariz.Ct.App.1991). Because the ICWA does not mandate tribal jurisdiction, this court has no basis on which to overturn the trial court's decision to retain the case, rather than to transfer it to the Tribe, on jurisdictional grounds. Because the Tribe did not appeal, we will not further address the ICWA jurisdiction.

We now turn to the parents' argument that the trial court erred in refusing to terminate their parental rights to the boys on the sole ground that there was no adoptive resource. Section 26-18-7, Ala.Code 1975, a part of the Child Protection Act, sets out the statutory grounds for termination of parental rights, as follows:

"(a) If the court finds from clear and convincing evidence, competent, material and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:

"(1) That the parents have abandoned the child, as herein defined;

"(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child;

"(3) That the parent has tortured, abused, cruelly beaten or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat or otherwise maltreat the child,...