| (Cite
as: 442 N.W.2d 233)
Supreme
Court of South Dakota.
In
the Matter of the DEPENDENCY AND NEGLECT OF A.L., M.L.,
and M.L., and
Concerning
G.L. and V.L., Parents.
No.
16444.
Argued
April 24, 1989.
Decided
June 14, 1989.
*234
Mark L. Bratt, Asst. Atty. Gen., Roger A. Tellinghuisen, Atty.
Gen., on the brief, Pierre, for appellee State.
Timothy L. Thomas of Morrill, Brown & Thomas, Rapid City,
for V.L., Father.
Jane Doyle of Doyle & Doyle, Rapid City, for G.L.,
Mother.
Jean M. Cline of Finch, Viken, Viken & Pechota, Rapid
City, for A.L., M.L., and M.L., Children.
MORGAN, Justice.
V.L. (Father) and G.L. (Mother), collectively parents, appeal jointly from
an order denying Cheyenne River Sioux Tribal Court's (Tribe's) petition
to transfer jurisdiction in the matter of the dependency and
neglect of their three children. We affirm.
The order appealed from arises out of a dependency and
neglect action commenced in state court by the South Dakota
Department of Social Services (DSS or State) on March 16,
1987, and involves three children. A.L., born March
18, 1978, is the biological daughter of Mother and adopted
daughter of Father. M.L., born February 9, 1980, is the
biological son of parents. M.L., born August 17,
1984, is the biological daughter of parents. The
children will be collectively referred to as "children."
While Mother is Caucasian, Father and children are enrolled members
of the Tribe.
A Notice to Tribe of Indian Child Custody Proceeding filed
May 12, 1987, advised Tribe that it had ten days
from receipt to request that jurisdiction be transferred, or to
request an extension of time to investigate the matter further.
A certified mail receipt shows delivery to Tribe
on May 13, 1987. Subsequent notices of hearing dates were
also sent by certified mail. An order adjudicating
the children as dependent and neglected was entered on August
17, 1987. An additional order dated December 24,
1987, gave DSS continued legal custody. At this
point, there has been no dispositional hearing.
On April 1, 1988, Joe Lends His Horse, Indian Child
Welfare Officer for Tribe, indicated to the Pennington County Deputy
State's Attorney, by telephone, that Tribe was willing to intervene
in this action. The request to intervene was
forwarded to the trial court, which ultimately held a transfer
hearing on May 26, 1988, and continued on June 9,
1988. A Notice to Tribe dated April 25,
1988, informed Tribe of the transfer hearing. A
registered mail receipt shows delivery to Tribe on May 4,
1988. Joe Lends His Horse appeared on behalf
of Tribe at the May 26, 1988, hearing and orally
requested the trial court to transfer the proceeding to Tribe.
Neither Father nor Mother opposed the transfer.
The state's attorney and attorney for children opposed the transfer.
At the hearing, they submitted exhibits and witnesses
in support of their objection to transfer. Ultimately,
the trial court determined that good cause to the contrary
existed to deny Tribe's petition to transfer jurisdiction.
The court's findings of fact and conclusions of law stated
in pertinent part that Tribe's request for transfer is untimely.
Further, that (1) A.L. was not Indian, (2)
the children have little contact or affiliation with Tribe, (3)
the effect of a transfer would be strongest on A.L.,
(4) the home the Tribe proposes
is not in the best interests of the children, and
(5) it would be detrimental to "split the children up."
*235
Parents' issue on appeal is whether the trial court erred
in finding good cause to deny Tribe's petition for transfer
of jurisdiction pursuant to the Indian Child Welfare Act (ICWA).
In so doing, they take issue with the
above findings of fact and conclusions of law.
We first define our scope of review. A
trial court's findings of fact cannot be set aside unless
they are clearly erroneous and we are, after a review
of all of the evidence, left with a definite and
firm conviction that a mistake has been made. Matter
of J.L.H.,
316 N.W.2d 650 (S.D.1982); SDCL 15-26A-10. A trial
court's conclusions of law may be reviewed and set aside
on appeal only when the trial court has erred as
a matter of law. Temple
v. Temple,
365 N.W.2d 561 (S.D.1985). We will uphold the
judgment of the trial court if it is right for
any reason.
ICWA, codified at 25 U.S.C. §§
1901 et seq. (1978), was passed by Congress because
it
is the policy of this Nation to protect the best
interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children from
their families and the placement of such children in foster
or adoptive homes which will reflect the unique values of
Indian culture[.]
25 U.S.C. §
1902; Claymore
v. Serr,
405 N.W.2d 650 (S.D.1987). The two specific purposes
of the act: (1) to protect the best interests
of Indian children, and (2) to promote the stability of
Indian tribes, is "based on the assumption that protection of
the Indian child's relationship to the tribe is in the
child's best interests." Chester
Cty. Dept. of Social S. v. Coleman,
296 S.C. 355, 357, 372 S.E.2d 912, 914 (1988).
An Indian child is defined as: "[A]ny unmarried person
who is under age eighteen and is either (a) a
member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child
of a member of an Indian tribe[.]" 25 U.S.C.
§
1903(4).
The children involved
in this proceeding are all enrolled members of Tribe. Although the trial
court found A.L. to be the biological child of Caucasian parents, and
the record clearly supports that finding, giving deference to the ICWA
provision "every State ... shall give full faith and credit to the
public acts, records, and judicial proceedings of any Indian tribe,"
25 U.S.C. § 1911(d); we hold that ICWA applies to all three children
and Tribe has concurrent jurisdiction in these proceedings.
When concurrent jurisdiction between the State and Tribe exists, 25
U.S.C. 1911(b) provides for the transfer of child custody proceedings
as follows:
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.
The issue in this case is whether the trial court's
determination that good cause to the contrary existed to deny
a transfer of proceedings to the tribal court, under the
above-quoted provision, was error. "Good cause to the contrary"
is not defined in the ICWA. The legislative
history of the ICWA states that the term was designed
to provide state courts with flexibility in determining the disposition
of a placement proceeding involving an Indian child.
S.Rep. No. 597, 95th Cong., 1st Sess. 17 (1977).
Relying on our decision
in Matter of
N.A.H., 418
N.W.2d 310 (S.D.1988), parents contend that the trial court must adhere
to the Department of the Interior Bureau of Indian Affairs Guidelines
for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584-67595
(Nov. 26, 1979) (hereinafter BIA guidelines) in determining what constitutes
"good cause to the contrary." *236
They argue further that, under these guidelines, the trial court erred
in finding Tribe's request for transfer untimely. In N.A.H.,
the
issue was whether state courts must conform to the notice requirements
of 25 U.S.C. § 1912(a) (registered mail return receipt requested).
We said: "At a minimum, notice must conform to the standards found
in 25 U.S.C. § 1912(a). Better practice would be to follow the [BIA
guidelines]." 418 N.W.2d at 311.
State contends that regardless of our holding in N.A.H.,
the BIA guidelines are merely "guidelines" and "do not have
binding legislative effect." Matter
of S.D.,
402 N.W.2d 346, 350 (S.D.1987). Further, that the
Tribe's request to transfer these proceedings was untimely even under
the BIA guidelines, therefore, good cause exists to deny transfer.
We agree with State that the BIA guidelines are not
binding. They are interpretative rather than legislative in
nature. The guidelines themselves state: "Courts will
take what this Department has to say into account in
such instances, but they are free to act contrary to
what the Department has said if they are convinced that
the Department's guidelines are not required by the statute itself."
44 Fed.Reg. at 67584. Clearly, this court
has the primary responsibility of interpreting the ICWA.
However, in interpreting the ICWA, these "administrative interpretations of statutory
terms are given important but not controlling significance." Batterton
v. Francis,
432 U.S. 416, 424-25, 97 S.Ct. 2399, 2405, 53 L.Ed.2d
448, 456 (1977).
Because we find the issue of timeliness dispositive, we only address that
aspect of the trial court's "good cause" determination. The
BIA guidelines provide in pertinent part the following criteria for determining
when good cause not to transfer may exist:
Good
cause not to transfer the proceeding may exist if any
of the following circumstances exists:
(i)
The proceeding was at an advanced stage when the petition
to transfer was received and the petitioner did not file
the petition promptly after receiving notice of the hearing.
44 Fed.Reg. at 67591. The timeliness of
a petition language is "designed to encourage the prompt exercise
of the right to petition for transfer in order to
avoid unnecessary delays." Id.
However, whether a petition is timely must be made
on a case-by-case basis. Flexibility is required by
the trial court in applying this "good cause" criteria.
Keeping this in mind, we review the record to
determine whether substantial evidence supports the trial court's finding that
good cause exists to deny transfer.
Parents argue that Tribe's request to transfer was timely based
on the fact that Tribe was not properly notified of
the proceedings until May 4, 1988. Furthermore, at
the May 26, 1988, hearing, it requested transfer.
DSS argues that Tribe had actual notice of the dependency
proceedings in May 1987, therefore, the transfer motion a year
later is untimely.
In Matter
of B.J.E.,
422 N.W.2d 597 (S.D.1988), we addressed the issue of notice
to the tribe under ICWA. In that case
we said:
Here,
although Tribe was not sent a copy of the amended
petition naming [the child], we find no violation of 25
U.S.C. §
1912(a) or the guidelines. It is clear from
the above facts that [the child] was named in many
documents filed with the court and sent to Tribe by
certified mail. Thus, Tribe had actual
notice
that the ongoing petition involved the [child] and there was
substantial compliance with the ICWA[.] (Emphasis in original.)
422 N.W.2d at 600. The same rationale
applies to the facts of this case. Tribe received
notice of the dependency proceeding as early as May 1987.
Even though Tribe did not receive registered notice,
they had actual notice.
We next determine whether Tribe's request for transfer was timely.
This issue has arisen in other jurisdictions.
We find two cases particularly helpful. In
re Robert T.,
200 Cal.App.3d 657, 246 Cal.Rptr. 168 (1988), a California Appeals
Court determined that Tribe had been given notice *237
of all proceedings since six months after the child was
first placed in foster care. Further, that Tribe
had not indicated its interest in the proceedings until after
it was notified of a termination hearing and an aunt
had expressed interest in custody. That court held
that this sixteen-month delay between the permanency planning hearing and
Tribe's first request to intervene was sufficient to establish "good
cause" to deny transfer.
In Matter
of Wayne R.N.,
107 N.M. 341, 757 P.2d 1333 (1988), parents requested transfer
to Tribal Court on the morning of the hearing on
a petition for termination of parental rights. The
trial court held the request was not timely.
On appeal, the New Mexico Court of Appeals agreed, holding
that the request to transfer was made almost six months
after being served notice of the proceedings and that this
provided "good cause" not to transfer.
In this case, the dependency petition was filed in March
1987. Tribe was notified on May 13, 1987.
The children were adjudicated dependent in August 1987.
Tribe has indicated only a passing interest by
orally petitioning for transfer on May 26, 1988, a year
after they received notice. Tribe has filed nothing
below, nor participated in this appeal. On these
facts, we cannot say that the trial court's finding of
untimeliness was clearly erroneous. Therefore, we affirm as to this
issue and do not find it necessary to discuss parents'
other issues.
Affirmed.
HENDERSON, J., concurs.
WUEST, C.J., and MILLER, J., concur specially.
SABERS, J., concurs in part and concurs specially in part.
WUEST, Chief Justice (specially concurring).
I concur with the majority opinion on the issues of
notice and timeliness. However, in my opinion, it
is unnecessary to hold that the State Court is bound
by the records of the tribe which show that a
Caucasian child is an Indian. Therefore, I decline
to express any opinion on that issue.
MILLER, Justice (specially concurring).
Although I generally agree with the majority decision, I disagree
with that part of the holding "that ICWA applies to
all three children and Tribe has concurrent jurisdiction in these
proceedings."
The majority correctly notes that the record "clearly supports" the
trial court's finding that A.L. is a biological child of
Caucasian parents. Further facts may be instructive.
None of the parties dispute that A.L. is Caucasian,
nor that this blue-eyed blond-haired child was born out of
wedlock to Caucasian parents. The hospital records support
that both natural parents were Caucasian. Even the
adoptive father in his petition for adoption to the Kansas
Court specifically alleges that the natural father of A.L. is
one L.H. of Douglas, Wyoming, admittedly a Caucasian.
The Kansas court in its decree of adoption held that
the allegations of the petition were true. (Isn't that
order
entitled to some type of full faith and credit too?)
True, the tribal enrollment records of A.L. indicate that she
is 3/8 Indian. Under normal circumstances we must (and
quite appropriately so) give full faith and credit to tribal
acts, records and proceedings. However, in this case
I suggest it is not only unwise but inappropriate because
the enrollment information regarding A.L. is in direct contravention of
the Cheyenne River Sioux Tribal Constitution and By-laws.
Under the Tribal Constitution and By-laws, membership in the Tribe
is limited to persons who have 1/4 or more degree
of Cheyenne River Sioux Indian blood. Obviously, A.L.
does not meet that requirement. Presumably, once this
matter is appropriately addressed to the Tribal Court or Tribal
Council, A.L.'s enrollment status will be rescinded.
We need not ignore the obvious realities and give full
faith and credit to the tribal enrollment records which were
clearly issued by mistake or based upon fraudulent misrepresentations to
it by others. The enrollment of A.L. is
so fundamentally flawed that we need not give it recognition
*238
or deference. See
Kremer v. Chemical Construction Corp.,
456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982);
Kiowa
Tribe v. Lewis,
777 F.2d 587 (10th Cir.1985), and Kickapoo
Tribe v. Rader,
822 F.2d 1493 (10th Cir.1987). See
also Cole v. Cunningham,
133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538 (1890),
and Rodda
v. Rodda,
185 Or. 140, 200 P.2d 616 (1948).
SABERS, Justice (concurring in part and concurring specially in part).
I concur in part and join Justice MILLER's special concurrence
in part.
442 N.W.2d 233
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