S.A.M., In Interest of, 13989

• Citation: 703 S.W.2d 603
• Decision Date: 22 January 1986
• Docket Number: No. 13989,13989
• Parties: In the Interest of S.A.M., H.W., Appellant.
• Court: Court of Appeal of Missouri (US)

Page 603

703 S.W.2d 603

In the Interest of S.A.M., H.W., Appellant.

No. 13989.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 22, 1986.

Linda F. Dycus, Kansas City, for appellant.

Betty A. Pace, Springfield, guardian ad litem.

FLANIGAN, Judge.

This is an appeal by the natural father from an order of the Juvenile Court of Christian County terminating his parental rights, § 211.447, ¹ to S.A.M., an illegitimate female child who was born on July 16 1976. Appellant is an Indian and an enrolled member of the Kickapoo Tribe of Kansas. The mother of the child is C.M., a non-Indian. This opinion will refer to the mother as "Carolyn," although that is not her name. The guardian ad litem of S.A.M. has filed a brief as respondent.

Appellant's sole contention is that the trial court erred in finding that the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901, et seq., ("the Act"), did not apply to the proceedings. For the reasons which follow, this court holds that appellant's contention, in light of the peculiar facts, has no merit.

There is no significant factual dispute. The termination proceeding was instituted on March 10, 1982, by the filing of a "petition to terminate parental rights" by a deputy juvenile officer. The petition alleged, among other things, the following: S.A.M. was in the custody of the Division of Family Services; ² Carolyn was the natural mother; appellant was the natural father whose address was unknown to the juvenile officer; the court was requested to terminate the parental rights of Carolyn and appellant pursuant to § 211.447 for various reasons, including abandonment, neglect, nonsupport and noncommunication; S.A.M. had come under the jurisdiction of the juvenile court under the provisions of cited sections of Chapter 211; thereafter the custody of S.A.M. had not been with the parents for six months or longer and S.A.M. had been under the jurisdiction of the court for more than one year immediately prior to the filing of the petition; the termination of the parental rights of Carolyn and appellant was in the best interest of S.A.M.

Also on March 10, 1982, the juvenile officer filed an application seeking "service by publication" upon appellant because his address was unknown. The court issued an order of publication of notice and notice was thereafter published in a Christian County newspaper for four successive weeks commencing March 18, 1982.

Carolyn filed an answer to the petition and several evidentiary hearings were held. Carolyn attended those hearings in person and by counsel but there was no appearance by appellant.

On September 21, 1983, the court entered its order terminating the parental rights of Carolyn. On September 23, 1983, in the same proceeding, the court entered its separate order terminating the parental rights of appellant. On October 4, 1983, appellant filed a motion to set aside the order of September 23, 1983. That motion was sustained and the order of September 23, 1983, was vacated.

On October 21, 1983, appellant filed an answer to the petition to terminate parental rights. The answer pleaded, among other things, that Carolyn's parental rights were properly terminated; that appellant's parental rights should not be terminated; that appellant is a full-blooded Kickapoo Indian and an enrolled member of the Kickapoo Tribe of Kansas; that S.A.M. was eligible for membership in the Kickapoo Tribe and was "an Indian child" within the purview of the Act; that the court "was bound" by the Act, and that the Act controlled the proceedings. Also on October 21, 1983, appellant filed a "motion to modify" in which he sought custody of S.A.M. as her Indian parent.

On October 21, 1983, the Kickapoo Tribe of Kansas, through counsel, moved to intervene as a party. The motion recited, among other things, that S.A.M., "being the natural child of [appellant], is eligible for membership in the Kickapoo Tribe." On November 23, 1983, the Division of Family Services filed a motion to intervene. On November 30, 1983, the court sustained the respective motions to intervene of the Kickapoo Tribe of Kansas and the Division of Family Services. ³

On January 24, 1984, a hearing was commenced. Present were the following: appellant and his counsel, the deputy juvenile officer and his counsel, the guardian ad litem (who is a lawyer), the Kickapoo Tribe of Kansas by its counsel, and the Division of Family Services by its counsel. The hearing lasted three days, the last two days being January 27 and January 31. Appellant and his counsel, the juvenile officer and his counsel, and the guardian ad litem appeared at all three sessions but the attorneys for the Kickapoo Tribe and the Division of Family Services did not appear at the last two.

The lengthy transcript contains the testimony of many witnesses, including physicians, pediatricians, psychologists, case workers and laymen. The argument portion of appellant's brief makes no mention of the testimony of any witnesses.

Appellant testified that between October and December 1975 he had intercourse with Carolyn about 10 times. Appellant did not live with Carolyn but they were co-workers at the same plant. Appellant was not married to Carolyn and "there was no discussion of marriage.... The relationship was just what we were after--she was 'easy.' "

Appellant further testified that he was laid off at the plant and then came back to work in March 1976. "I saw Carolyn but we did not resume our relationship. I worked there until mid-April of 1976 and then left. I could tell Carolyn was pregnant. She was 'showing.' I did not discuss this pregnancy with her nor she with me. I did not ask her whose child it was. I thought Carolyn was probably three or four months along in her pregnancy and that would coincide with the time I had relations with her. At that time I did not feel a responsibility to determine if the child was mine."

Appellant testified that in February 1983, by accident, he saw a picture of S.A.M. and realized that the child was his. Prior to that time "I made no contact with Carolyn and made no effort during those seven years to determine whether or not the child was mine. I did not pay any support nor offer any."

Appellant consulted an attorney in early 1983. In March 1983 appellant and his attorney were under the misapprehension that his parental rights had already been terminated and it was too late to appeal. In April 1983 appellant decided he wanted "to get his parental rights back." In mid-August 1983 appellant and his attorney found out his rights had not been terminated but they delayed intervening in the proceeding until Carolyn's rights had been terminated.

On cross-examination appellant testified that he knew that S.A.M. had severe emotional problems and needed psychiatric care and that he understood she was mentally handicapped.

The parties stipulated that appellant is an Indian and an enrolled member of the Kickapoo Tribe.

It is undisputed that S.A.M. was almost seven years old before appellant knew that S.A.M. even existed. S.A.M. has never been in the custody of appellant and indeed appellant has seen her only twice. Appellant first saw S.A.M. in September 1983 during a two-hour visit at a zoo. Also present on that occasion were S.A.M.'s foster parents. In January 1984 appellant had a second visit with S.A.M. at a zoo in St. Louis. Also present was the case worker of the Division of Family Services.

On September 10, 1984, the court entered its order terminating the parental rights of appellant and continuing the Division of Family Services' custody of the child, "until such time as an adoptive placement can be made."

The trial court made the following findings which appellant does not challenge: "[T]here are special circumstances which justify placing the child with other than the biological parents. ... S.A.M. is an extremely emotionally disturbed youngster with multiple handicaps facing her. She has been placed with a family who has special skills in coping with her and in providing an unusually enriching and stable lifestyle for her. Each of the specialists who testified in open court or by deposition, with the exception of Dr. LeFevre, testified unequivocally that S.A.M. would regress if she were removed from her present home.... It is in the best interest of S.A.M. that she be permitted to stay in the home where she is presently located.... It is in the best interest of S.A.M. that the parental rights of [appellant] be terminated.... No support payments were ever made or offered by [appellant] even after he allegedly first learned of the child's existence in March 1983."

It should be observed that appellant makes no claim that the termination proceeding did not comply fully with the requirements of §§ 211.442 to 211.492. The trial court did find that S.A.M. was not "an Indian child," within the meaning of the Act, and the court also found that the Act did not apply to the proceeding. Appellant's challenge is to the propriety of those two findings.

In his argument appellant merely states that there was no compliance with the notice provision of § 1912(a) of the Act and that the trial court failed "to make a prior determination" of whether the child was an Indian child and thus had no jurisdiction to proceed. The fact is that appellant and the Kickapoo Tribe became parties to the proceedings well in advance of the hearing which commenced January 24, 1984. The time during which they had the opportunity to prepare for the hearing exceeded the time required by § 1912(a), set forth infra. It is also true that even if the trial court erred in its ruling that the Act did not apply, such an error did not divest the trial court of jurisdiction. State ex rel. Juv. Dept. v. Charles, 70 Or.App. 10, 688 P.2d 1354, 1360 (fn. 5), (1984).

Certain provisions of the Act must be mentioned.

"Indian" includes any person who is a member of an Indian tribe. § 1903(3). "Indian child" means any...