(Cite
as: 256 A.D.2d 1201)
In
the Matter of Philip Jaye J., Jr., and Others, Infants.
Monroe County
Department
of Social Services, Respondent; Brenda J., Appellant.
Supreme
Court, Appellate Division, Fourth Department, New York
(December
31, 1998)
Order unanimously affirmed without costs.
We affirm the order terminating respondent's parental rights for reasons
stated in the decision at Monroe County Family Court (Miller,
J.). We note that respondent failed to meet her burden
of proving the applicability of the Indian Child Welfare Act
of 1978 (25 USC §
1901 et
seq.)
or Social Services Law §
39 (6) because she failed to prove that her children
were "Indian child [ren]" (25 USC §
1903 [4]; Social Services Law §
2 [36]). The only evidence that respondent herself was a
Cherokee Indian was testimony by an agent of the Monroe
County Department of Social Services. That witness testified that respondent
lied to him in 1995 when she told him that
her mother had died on the Cherokee Reservation in North
Carolina. In fact, respondent's mother did not die until June
1996, and the place of death was not proven. Unsworn
statements by respondent to the effect that respondent is a
Native American, found on exhibits submitted by petitioner, do not
prove that the children
are members of or eligible for membership in an Indian
tribe and the biological children of a member of an
Indian tribe (see,
25 USC §
1903 [4]; Social Services Law §
2 [36]).
Further, respondent's counsel did not move to transfer the case
to a tribal court until after the close of proof
at the fact-finding hearing on the permanent neglect petition, eight
months after the filing of the petition. In the alternative
he requested an adjournment to allow respondent to research her
Native American heritage. Under the circumstances, the denial *1202
of an adjournment was not an abuse of discretion (see,
Matter of Alario v DeMarco,
149 AD2d 587, 589, appeal
dismissed
74 NY2d 791; see
generally, People v Spears,
64 NY2d 698, 699-700). In addition, there was good cause
to deny the motion to transfer (see,
25 USC §
1911 [b]; Social Services Law §
39 [6]; Matter
of Maricopa County Juvenile Action No. JS-8287,
171 Ariz 104, 107, 828 P2d 1245, 1248).
Because there was no proof that the children were Indian
children within the meaning of Social Services Law §
2 (36) and 25 USC §
1903 (4), the court properly applied the clear and convincing
evidence standard of proof in Family Court Act §
622 and not the beyond a reasonable doubt standard of
proof in 25 USC §
1912 (f). The court properly determined that it was in
the best interests of the children to terminate respondent's parental
rights and free
the children for adoption rather than to suspend judgment for
one year (see,
Family Ct Act §
631; Matter
of Michael B.,
80 NY2d 299, 310-311; Matter
of Sonny H. B.,
249 AD2d 940). (Appeal from Order of Monroe County Family
Court, Miller, J.--Terminate Parental Rights.)
Present--Denman, P. J., Hayes, Pigott, Jr., Callahan and Fallon, JJ.
Copr.
(c) 2005, Randy A. Daniels, Secretary of State, State of
New York.
N.Y.A.D.,1998.
Matter
of (Brenda J.) J. (Philip Jaye)
|