Raena R. v. State (In re Parental Rights as to S.M.M.D.)
| Decision Date | 26 January 2012 |
| Docket Number | No. 55541.,55541. |
| Citation | 272 P.3d 126,128 Nev. Adv. Op. 2 |
| Parties | In the Matter of PARENTAL RIGHTS AS TO S.M.M.D. and T.A.D.Raena R., Appellant, v. State of Nevada; Ted R.; and Raelynn R., Respondents. |
| Court | Nevada Supreme Court |
OPINION TEXT STARTS HERE
Donald K. Pope, Reno, for Appellant.
Catherine Cortez Masto, Attorney General, and Sharon L. Benson, Deputy Attorney General, Carson City, for Respondent State of Nevada.
Ernest E. Adler, Carson City, for Respondents Ted R. and Raelynn R.Before the Court En Banc.
This appeal requires us to decide whether, under section 1919 of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901–1963 (2006), a tribal-state agreement respecting child custody proceedings may vest a Nevada district court with subject matter jurisdiction to take a relinquishment of parental rights under circumstances where section 1911(a) of the ICWA, 25 U.S.C. § 1911(a), would otherwise lay exclusive jurisdiction with the tribal court. We conclude that the ICWA, in keeping with fundamental principles of tribal autonomy, allows for tribal-state agreements for concurrent jurisdiction even when the tribe would have exclusive jurisdiction absent an agreement. Therefore, we affirm.
This case has a long history. In September 2002, the social services division of the Fallon Paiute Shoshone Tribe (the tribe) removed S.M.M.D. and T.A.D. (the children) on an emergency basis from their mother Raena, who lived on the reservation with them and is a member of the tribe. Tribal social services returned the children to Raena but their situation did not stabilize. In July 2003, Nevada Department of Child and Family Services (DCFS) and tribal social services undertook a joint investigation of the children's welfare; this culminated in the tribe removing the children for a second time in December 2003. Because the children did not meet the tribe's then-applicable blood quantum requirement for membership, tribal social services ceded custodial oversight to DCFS.
The children were returned to Raena but renewed concern for the children's welfare led tribal social services and DCFS to conduct a second joint investigation. In December 2004, this investigation ended like the first, with DCFS entering the reservation with the tribe's permission and taking custody of the children; in January 2005, child welfare dependency proceedings were brought in state court. DCFS and the district court established a case plan for Raena but placed the children with foster parents Tim and Mayris T. of Fallon (the foster parents). The court held periodic reviews to monitor the children and to measure Raena's progress. Each time, the district court reassessed the ICWA's applicability and, until January 2006, concluded that the tribe did not have jurisdiction over the children because they did not meet its blood quantum requirements for eligibility.
Some time before January 2006,1 the tribe changed its blood quantum requirements. This change made the children eligible for tribal membership and brought them within the purview of the ICWA. In January 2006, the district court determined that the children were “Indian children” subject to the ICWA, 25 U.S.C. §§ 1901– 1963, and it found that Raena had failed to make “normal parental adjustments.” DCFS decided to pursue termination of her parental rights.
Coordination between tribal social services and DCFS continued. DCFS notified the tribe that it was pursuing termination of Raena's parental rights and invited the tribe to intervene. Interim tribal social services director Melanie Arragon replied that the tribe was willing to address parental rights but that “if this process ha[d] already begun with the state the tribal social services would like the process to continue.” The tribal court issued an order in February 2006 declaring the children wards of the tribe but that the tribe's “legal and physical custody” of the children was “concurrent with the State of Nevada [and DCFS]” and “the current plan and placement of [the children] is appropriate and approved to address termination of parental rights.”
The process continued in state court, with DCFS social worker Rhonda Felix and tribal social services director Bonnie Rushford maintaining the state-tribal communication. Felix attended at least two meetings with the tribe and made several appearances in tribal court. In June 2006, DCFS notified the district court that “[a] joint decision [had been] made to continue with the Division of Child and Family Services maintaining jurisdiction with the Fallon Paiute Shoshone Tribal Social Services being a co-agent and lending support.”
In December 2006, DCFS petitioned the district court to terminate Raena's parental rights over the children. Its petition advised that “[u]pon a termination of parental rights hearing being set the Fallon Paiute Shoshone Tribal court will schedule a Status hearing to receive an update on what is occurring....” And in January 2007—as DCFS predicted—the tribal court held a status hearing. The tribal court determined that the tribe and state maintained concurrent “legal and physical custody” over the children and that the “current plan and placement of [the children] ... is appropriate” and it “approved” the “termination petition ... proceeding in the state court.”
The termination hearing proceeded in state court on March 5, 2007. Raena attended with counsel. Before the hearing concluded and after consulting with her counsel, Raena elected to voluntarily relinquish her parental rights. The district court canvassed Raena to ensure that her relinquishment was knowing, voluntary, and free of undue influence. The court accepted the voluntary relinquishment, also terminated the father's parental rights, and placed the children with DCFS. In June 2007, the district court ordered that “legal and physical custody of [the children] be returned to the Fallon Paiute Shoshone Tribal Social Services.” The tribal court then entered an order accepting “all jurisdiction over these proceedings.” 2 In March 2008, the tribal court, after a hearing, ordered the adoption of S.M.M.D. and T.A.D. to respondents Ted and Raelynn R.
When Raena relinquished her parental rights, she had assumed that the children's foster parents would become their adoptive parents. Disappointed that they did not, Raena returned to state district court and asked that court to set aside her relinquishment under ICWA, 25 U.S.C. § 1914. She maintained that the district court had not had jurisdiction to take her relinquishment, invalidating it.3 The district court heard arguments and denied the petition. It found that “Tribal Social Services and State Social Services were in agreement that the Termination of Parental Rights should proceed in State District Court and the placement and adoption of the children, if necessary, would proceed in the Tribal Court.” Ultimately, the district court determined that it was not a court of competent jurisdiction under section 1914 to void the termination.
Raena appeals the district court's denial of her petition.
Raena presents three arguments for invalidating the district court's taking of her relinquishment. First, she argues that the tribe had jurisdiction under 25 U.S.C. § 1911(a), and there was no tribal-state agreement to give the state court jurisdiction to take the termination of her parental rights. Second, she proposes a statutory argument that, even if a tribal-state agreement existed, such an agreement cannot provide a state court's sole basis for jurisdiction over Indian children; in essence she argues that if jurisdiction is exclusive to the tribe under section 1911(a), the tribe cannot share that jurisdiction with the state under section 1919. Third, she argues that the district court's termination proceeding disregarded the ICWA's tribal and parental notice requirements, see 25 U.S.C. § 1912, and NRS Chapter 62B's ICWA notice requirements.
Before reaching the merits of Raena's arguments, we must resolve two threshold challenges mounted by the State and the adoptive parents (collectively, the State).
The State's first challenge is jurisdictional. Citing In re M.M., 154 Cal.App.4th 897, 65 Cal.Rptr.3d 273, 281 (2007), in which a California Court of Appeal held that it could not hear the appeal from an order transferring jurisdiction from a state to a tribal court because the transfer divested all California courts of jurisdiction to amend the order, the State maintains that this court lacks subject matter jurisdiction over this appeal.
Under the ICWA, state courts are courts of limited jurisdiction. See State v. Native Village of Tanana, 249 P.3d 734, 738–39 (Alaska 2011). The State's challenge to our jurisdiction fails, however, because it does not distinguish between jurisdiction to determine jurisdiction, which a court inherently possesses, see Rosado v. Wyman, 397 U.S. 397, 403 n. 3, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970) (), and jurisdiction over the subject matter of the controversy, which, when absent, means the court “cannot decide the case on the merits.” In re Orthopedic Products Liab. Litigation, 132 F.3d 152, 155 (3d Cir.1997).
The State misinterprets In re M.M. to apply to the former while it concerns the latter. The M.M. appeals court held that it lacked jurisdiction to determine the merits of the transfer order, not that it lacked jurisdiction to determine whether the California district court had jurisdiction at the outset. 65 Cal.Rptr.3d at 284. As such, In re M.M. is inapposite. See Swan v. Swan. 106 Nev. 464, 469, 796 P.2d 221, 224 (1990) ().
Second, seizing on the children's initial ineligibility for tribal membership, the State asserts that the district court's termination proceeding represented the continuation of the 2005...
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