Wayne R.N., Matter of
| Citation | 757 P.2d 1333,107 N.M. 341,1988 NMCA 48 |
| Decision Date | 02 June 1988 |
| Docket Number | No. 10212,10212 |
| Parties | In the Matter of the Termination of Parental Rights of WAYNE R.N. and Rebecca R.N., with respect to Mikul R.N. and Wayne R.N., Jr., Children. STATE of New Mexico, ex rel. HUMAN SERVICES DEPARTMENT, Petitioner-Appellee, v. WAYNE R.N. and Rebecca R.N., his wife, Respondents-Appellants. |
| Court | Court of Appeals of New Mexico |
Respondents appeal from the judgment of the trial court terminating their parental rights. Although in other contexts New Mexico law requires that grounds for termination be proved by clear and convincing evidence, In re Adoption of Doe, 98 N.M. 340, 648 P.2d 798 (Ct.App.1981), in termination proceedings involving parental rights to a child subject to the Indian Child Welfare Act, the grounds for termination must be proved by evidence beyond a reasonable doubt. See NMSA 1978, Sec. 32-1-54(D) (Repl.1986) and 25 U.S.C. Sec. 1912(f) (1982). On appeal, respondents contend (1) that the trial court was required to transfer this case to the tribal court of the Cheyenne and Arapaho Tribes of Oklahoma; (2) that the evidence is insufficient to establish that the respondents are not and cannot be adequate parents of their children; and (3) that the Department of Human Services (department) failed to use reasonable efforts to assist them in adjusting the conditions rendering them unable to properly care for the children. Sec. 32-1-54(B)(3). We affirm.
Wayne R.N., the father of the two children involved in this case, is an enrolled member of the Cheyenne and Arapaho Tribes of Oklahoma (the Tribes). Rebecca R.N., his wife and the mother of the two children, is not Indian. They live in Colfax County, New Mexico. One of the children was in the custody of the department when the department petitioned to terminate respondents' rights; the other child was in respondents' custody. Respondents are the parents of two other children, as to whom parental rights were terminated in a prior proceeding. It is undisputed that the children are enrolled or entitled to be enrolled in the Tribes, and thus the Indian Child Welfare Act of 1978 (ICWA) is applicable. See 25 U.S.C. Secs. 1901-1963 (1982).
The application for termination of parental rights was filed January 15, 1987. A copy of the application was served on the Tribes by serving Judy Lewis, the attorney for the Tribes. The petition alleged the Tribes were aware of the proceedings and had found an adoptive home for one of the children. On January 26, 1987, the trial court appointed a guardian ad litem for the children and counsel for the parents. The hearing on the merits was held on several days in July and August 1987, due to the court's crowded docket.
At the beginning of the hearing on the merits, respondents petitioned the court to transfer the case to the tribal court of the Cheyenne and Arapaho Tribes at Concha, Oklahoma. The state's attorney and the guardian ad litem for the children both objected to the transfer. The trial court held a hearing on the issue of whether the case should be transferred.
Lewis testified that she had represented the Tribes in ICWA cases for four years. She stated the Tribes were opposed to a transfer to the tribal court at that point in the proceedings. She noted that the Tribes have a policy against accepting transfers of cases in which the child, the parents, the witnesses, and all the evidence were in another state. In her opinion, if the trial court were to decide to transfer the case to the tribal court, the Tribes would decline jurisdiction. On cross-examination, she indicated that the Tribes had taken no formal action to decline jurisdiction in the case.
Terry Love, the Tribes' social worker, testified she was authorized by the Tribes' business council to act for the Tribes in ICWA cases. She further testified that, in her opinion, if the state trial court granted the petition to transfer, the Tribes would decline jurisdiction.
At the end of the hearing, the trial court declined to transfer the case to the tribal court. The trial court noted on the record that the petition was not timely and that there was no reasonable likelihood the Tribes would accept jurisdiction. In its formal findings and conclusions, the trial court found the Tribes had been notified and had agreed to jurisdiction in the state court.
On appeal, respondents argue that the transfer provision of the Indian Child Welfare Act is mandatory, and, since the Tribes have not taken formal action to decline jurisdiction, it was error for the trial court to refuse to transfer the matter. We disagree.
The Indian Child Welfare Act provides, in pertinent part:
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: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.
25 U.S.C. Sec. 1911(b) (emphasis added).
Once a petition to transfer a matter to tribal court is filed as contemplated by the Act, the state court must hold a hearing on the petition, and determine whether or not to transfer the matter. In re G.L.O.C., 205 Mt. 352, 668 P.2d 235 (1983); In re M.E.M., 195 Mt. 329, 635 P.2d 1313 (1981). At the hearing, the party opposing transfer has the burden of establishing that good cause not to transfer the matter exists. In re M.E.M. If the state trial court determines the party opposing the transfer has established good cause not to transfer, the state trial court may deny the petition. If, however, the state trial court grants the petition, the tribal court must determine whether to accept or decline jurisdiction.
The determination of whether good cause not to transfer the proceedings exists will necessarily be made on a case-by-case basis, after a careful consideration of all the circumstances of the case. In this case, there are a number of factors that support the trial court's decision not to transfer the case to the tribal courts.
First of all, the request to transfer the proceedings was made by respondents orally on the morning the trial on the merits was to begin and almost six months after they were served in these proceedings. The Department of the Interior has published guidelines containing its interpretation of the ICWA. 44 Fed.Reg. 67584 (1979) (not codified). Although these guidelines are not binding, id., other courts have found particular provisions persuasive. See In re M.E.M.; In re J.R.H., 358 N.W.2d 311 (Iowa 1984). So do we.
The guidelines note that one of the factors a state trial court should consider is whether the petitioner filed the petition promptly after receiving notice of the hearing. 44 Fed.Reg. at 67591, p C.3(b)(i). In the instant case, respondents filed their petition approximately six months after they had been served and had counsel appointed for them. This factor weighs against transfer of the proceedings.
In addition, the respondents, the children, and apparently all the witnesses who could testify concerning respondents' actions and their effect on the children were all present in New Mexico, while the relevant tribal court was located in Oklahoma. If this case were to be transferred to the tribal court, the witnesses would all be forced to travel to Oklahoma, at considerable expense and difficulty. Moreover, the Tribes' attorney testified that the tribal court's subpoena power was limited, and the tribal court would not be able to subpoena witnesses in New Mexico. Other states have recognized that in these circumstances good cause to deny a transfer to the tribal court may exist. In re J.R.H.; In re Bird Head, 213 Neb. 741, 331 N.W.2d 785 (1983); see also In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982) (dicta). These holdings are in line with the position of the Department of the Interior on the...
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