Welfare of M.S.S., Matter of, s. 19744-8-I

• Decision Date: 02 May 1997
• Docket Number: Nos. 19744-8-I,19743-0-II,s. 19744-8-I
• Citation: 936 P.2d 36,86 Wn.App. 127
• Court: Washington Court of Appeals
• Parties: In re the Matter of the WELFARE OF M.S.S. In re the Matter of the WELFARE OF M.E.S.

Page 127

86 Wn.App. 127

936 P.2d 36

In re the Matter of the WELFARE OF M.S.S. In re the Matter of the WELFARE OF M.E.S.

Nos. 19744-8-II, 19743-0-II.

Court of Appeals of Washington Division 2.

May 2, 1997.

Peter B. Tiller, Tiller, Fagerness & Wheeler, Rock & Pine, Centralia, for Appellant

Jennifer Lynn Wieland, Deputy Pros. Atty., Montesano, for Respondent.

ARMSTRONG, Judge.

William S. appeals orders terminating his parental rights as to his two children, M.S.S. and M.E.S. He contends that the trial court lacked jurisdiction because the Department of Social and Health Services (the Department) failed to comply strictly with the notice provisions of the Indian Child Welfare Act. A premature notice sent to the wrong administrative office and the failure to wait 10 days after notifying a potentially interested Native American tribe before commencing the termination proceeding do not constitute substantial compliance with the act. We therefore remand to the trial court for proper notice under the act.

FACTS

William S. and Shawna S. are the parents of M.S.S. and M.E.S. M.S.S. was born in December 1992, and found dependent in September 1993. M.E.S. was born in January 1994, and found dependent in March 1994. The Department subsequently sought termination of the parental rights of both William S. and Shawna S.

The mother and father did not comply with the recommendations contained in the dependency orders. Furthermore, although the father had abstained from drugs and alcohol, he used "crank" again in July 1994. He apparently was under the influence of the drug when he committed first degree murder and was sentenced to 32 years in prison. Since being incarcerated, the father has not sent any letters or financial support to the children, nor contacted social workers about the children.

Dale McKee, a Department social worker, testified that he did not know where the mother was, not having heard from her since December 1994. Wynona Jamison, a Department manager and member of the Local Indian Child Welfare Advisory Committee (LICWAC), testified that the mother has a card indicating that she is a member of an Alaskan tribe or corporation, and is 3/8th Eskimo and otherwise 1/8th Indian. The father is not Native American or Eskimo.

McKee testified that in October or November 1993, after dependency had been established for M.S.S., he sent a notice to Jimmy Clemons, a Bureau of Indian Affairs (BIA) social worker, at the Bureau office in Alaska. According to McKee, Native Alaskans born after 1971 who do not have a certain percentage of Indian blood are not identified with a specific corporation. McKee did not know which corporation to contact about the mother and he requested that Clemons research the issue. Clemons never responded to this inquiry.

A BIA social worker later informed McKee that the mother and children might be members of the Chitina corporation in Alaska. McKee notified the Chitina corporation, by sending a petition, a notice and summons, and a family tree, and asking if the mother and children were members. In late March 1995, he received a letter from the Chitina stating that the mother and children were not on the active tribal enrollment. McKee testified that he then did not know what to do, that he had "hit a stone wall."

In the middle of June 1995, William's attorney wrote McKee that the Cook Inlet Indian Tribe had identified Ramona Taylor, the children's maternal grandmother, as an enrolled member of their corporation. McKee contacted Vincent Lekanoff, a social services counselor with the Cook Inlet tribe, who requested additional information. The next day, Friday, June 23, 1995, McKee sent by overnight mail an inquiry to Lekanoff as to whether the children are considered Native American under the Indian The court held the termination hearing on June 30, 1995. McKee testified that when the Department knows the tribal identity, it sends a notice to both the tribe and the BIA. The Department, however, did not know the tribal identity after the Chitina proved incorrect. The mother did not know what corporation with which she was involved and could not provide the names of any family members with whom McKee could talk about tribal membership. The trial court found that the Department had made every effort to comply with the ICWA, and it concluded that the provisions of the act had been met. The trial court then terminated both parents' rights and the father appealed.

Child Welfare Act (ICWA). McKee was unsure whether he sent the information by certified mail. On Monday, June 26, 1995, Lekanoff informed McKee that the tribe did not want to be involved and would not intervene in the proceedings. Lekanoff did not state whether the children were enrollable.

ANALYSIS

Notification under the Indian Child Welfare Act

The father argues that because the Department did not properly comply with the ICWA notice provisions, the trial court lacked jurisdiction to terminate his parental rights. ¹ Congress enacted the ICWA to counteract the large-scale separations of Native American children from their families, tribes, and culture through adoption and foster care placement in non-Native American homes. Matter of Adoption of Crews, 118 Wash.2d 561, 567, 825 P.2d 305 (1992). The ICWA provides substantive and procedural safeguards to prevent the unwarranted separations of Native American children from their families and culture. Crews, 118 Wash.2d at 568, 825 P.2d 305.

As the Kahlen W. court noted,

The Act is explicit as to what is required. Ascertaining the correct notice procedure when a child's status is uncertain is not difficult. A quick glance at the language of the statute and its attendant regulations provides the answer.

In re Kahlen W., 233 Cal.App.3d 1414, 285 Cal.Rptr. 507, 514 (1991). The ICWA requires that in any involuntary child custody proceeding involving an Indian child, the State shall notify the parents and the Indian child's tribe, by registered mail with return receipt, of the pending proceedings and the tribe's right to intervene. 25 U.S.C. § 1912(a). ² The Indian status of the child need not be certain. Kahlen W., 285 Cal.Rptr. at 511. Notice is required whenever the court knows or has reason to believe the child is Indian. Kahlen W., 285 Cal.Rptr. at 511.

When the identity of the tribe cannot be determined, the ICWA requires that notice be given to the Secretary of the Interior, "who shall have fifteen days after receipt to provide the requisite notice to the ... tribe." 25 U.S.C. § 1912(a). The ICWA implementing regulations provide that if the identity or location of the Indian parents, Indian custodians, or the child's tribe cannot be determined, notice of the termination proceeding shall be sent by certified mail with return receipt requested to the appropriate BIA Area Director under the Secretary of the Interior. ³ 25 C.F.R. § 23.11(b). For all proceedings in Washington, the regulations require notice to the Portland BIA office. 25 C.F.R. § 23.11(c)(11). Furthermore, no termination proceeding shall be held until at least 10 days after receipt of the notice by the tribe or by the Secretary. 25 U.S.C. § 1912(a); In re Dependency of Colnar, 52 Wash.App. 37, 39, 757 P.2d 534 (1988); Matter of L.A.M., 727 P.2d 1057, 1060 (Alaska 1986).

Notice is a key component of the congressional goal to protect and preserve Native American families. It ensures that the tribe will be afforded the opportunity to assert its rights under the act. Without such notice, the rights guaranteed by the ICWA are meaningless. Kahlen W., 285 Cal.Rptr. at 511. Accordingly, the ICWA specifically authorizes a parent to petition a court to invalidate a termination proceeding upon a showing that the notice requirements of the act have not been met. 25 U.S.C. § 1914; L.A.M., 727 P.2d at 1059.

Failure to provide the required notice mandates remand unless the tribe has participated in the proceedings or expressly indicated that it has no interest in the proceedings. See Kahlen W., 285 Cal.Rptr. at 513. But technical compliance with the act is not required if there has been substantial compliance with the notice provisions of the ICWA. See Kahlen W., 285 Cal.Rptr. at 511. The statute and the case law, however, have all required actual notice to the tribe of both the proceeding and the right to intervene. See Kahlen W., 285 Cal.Rptr. at 511; see also Matter of Dependency and Neglect of A.L., 442 N.W.2d 233, 236 (S.D.1989) (although notice not sent by registered mail, tribe had actual notice by certified mail).

1. Cook Inlet Tribe

Here, the father alleges that the Department failed to give proper notice to the Cook Inlet tribe, the Chitina tribe, and the Secretary of the Interior. The father first argues that the notice to the Cook Inlet tribe was not sent by registered mail with return receipt requested. McKee testified that he sent the notice by overnight mail, but was unsure if he sent it certified. The tribe, however, had actual notice. Because of this and because we find no prejudice to either the tribe or the children by the failure to send the notice by registered mail, we hold that the overnight mailing substantially complied with the mailing requirements of the act. See A.L., 442 N.W.2d at 236 (substantial compliance as tribe had actual notice by certified mail).

The father then argues that the Department did not give the Cook Inlet tribe notice 10 days before the hearing. Under the ICWA, no termination of parental rights shall be held until at least 10 days after the tribe receives the notice. 25 U.S.C. § 1912(a); Colnar, 52 Wash.App. at 39, 757 P.2d 534; L.A.M., 727 P.2d at 1060. Here, McKee mailed the information seven days before the hearing. Although the tribe said it was not interested and would not intervene, we conclude this was not sufficient notice. Ten days may be barely sufficient time for the tribe to ascertain whether the children are members, and if so, whether the tribe wants to...