(Cite
as: 166 Vt. 173)
Supreme Court of Vermont.
In
re J.T. and C.T.
No.
96-051.
Jan. 10, 1997.
**284
*175
Charles S. Martin of Martin & Paolini, Barre, for appellant mother.
Michael
Rose, St. Albans, for appellant father.
Jeffrey
L. Amestoy , Attorney General, Montpelier, and Michael O. Duane, Assistant
Attorney General, Waterbury, for appellee Department of Social and Rehabilitation
Services.
Robert
Appel , Defender General, and Henry Hinton, Appellate Defender, Montpelier,
for appellees juveniles.
Before ALLEN , C.J., and
GIBSON , DOOLEY , MORSE and JOHNSON, JJ.
GIBSON, Justice.
J.T.'s
and C.T.'s mother and father separately appeal a family court order terminating
their parental rights to both children. *176
The mother argues that the court erred in terminating parental rights
without a prior approved case plan and that the court improperly incorporated
CHINS findings in the disposition findings. The father argues that the
court failed to determine whether the Vermont Department of Social and
Rehabilitation Services (SRS) made reasonable efforts to assist him. Both
parents contend that the court should have provided notice under the Indian
Child Welfare Act (ICWA) as soon as it had reason to believe that the
**285
children were of Indian ancestry. We remand for the court to give notification
of the proceeding to the Bureau of Indian Affairs. If a tribe responds,
further proceedings consistent with the ICWA will be necessary; otherwise,
we affirm the court's finding that it is in the best interests of J.T.
and C.T. that parental rights be terminated.
SRS first became involved
with the family in May 1989, when the parents' failure to maintain telephone
service while C.T. suffered from a breathing disorder posed a serious
medical threat. From that date through 1993, SRS became increasingly involved
with the family. Between 1989 and early 1991, two attempts were made to
improve the mother's and father's parenting skills through the Family
Intensive Program and a parent education program. Both counselors terminated
the programs when the mother's mental health issues made working on parenting
skills impossible. The mother began participation in a mental health program
in 1989, but dropped out in January 1990. From late 1992 to early 1993,
the mother again entered counseling, both individually and with the children,
but attempts to improve parenting skills were unsuccessful.
In spite of the services
offered by SRS, the condition of the family deteriorated steadily. By
1993 SRS had substantiated physical and sexual abuse to both children
by family members and persons living with family members. There was also
extensive evidence of physical neglect and emotional abuse to both children,
particularly J.T. The children were taken into temporary custody by SRS
in September 1993, and after a merits hearing in November 1993, they were
found to be children in need of care and supervision (CHINS) due to lack
of proper parental care.
A case plan was developed
by SRS in March 1994 and given to both parents. Although the case plan
set a goal of family reunification, the parents were informed at a case
plan review on March 31, 1994 that failure to follow the plan could result
in a change in the goal. Following the CHINS order and distribution of
the case plan, both parents continued to receive family services through
SRS.
*177
After completion of a family evaluation by an independent psychologist,
a disposition hearing was scheduled for July 27, 1994. At the start of
the hearing, the parents informed the court that they planned to separate.
Deciding that the existing case plan, which called for reunification of
the children with both parents, was not appropriate if the parents separated,
the court discussed development of new case plans, ended the hearing,
and issued an order maintaining custody of both children with SRS. When
SRS was unable to confirm that the mother and father had separated as
announced, alternative case plans were not developed. Instead, a new SRS
case plan dated September 9, 1994 called for termination of parental rights.
In October 1994, SRS filed
a petition to terminate parental rights; hearings began in December. Following
eight days of hearings, the court terminated parental rights.
I.
Mother and father both
raise several issues on appeal. The mother first argues that the trial
court erred in finding a change in circumstances when there had been no
previously approved case plan. But termination of parental rights can
occur in one of two ways. Where there has been a prior disposition order
and an approved case plan, the court must find a substantial change in
material circumstances and that it is in the best interests of the child
that all parental rights be terminated. In
re M.M., 159
Vt. 517, 521, 621 A.2d 1276, 1279 (1993). Parental rights may also be
terminated at the initial disposition hearing if the court finds it to
be in the best interests of the child to do so. In
re B.M., 165
Vt. 194, ----, 679 A.2d 891, 895 (1996) ; 33 V.S.A. § 5540. The first
method is preferred, In
re B.M., 165
Vt. at ----, 679 A.2d at 895, but the court's findings in either situation
will be upheld unless clearly erroneous. See In
re J.M., 160
Vt. 146, 149, 624 A.2d 362, 363-64 (1993).
Some confusion was created
by the abbreviated July 27 hearing, which was originally intended to be
a disposition hearing. Additional confusion was created when the trial
court included a finding of substantial change in material circumstances
in its January 1996 **286
termination order, stating it was unsure of the effect of the July 27
hearing. Nonetheless, it is clear that the July 27, 1994 hearing was not
a disposition hearing, and therefore the court's finding of substantial
change in material circumstances was unnecessary. No evidence was considered
during the July 27 hearing-on either the mother's and father's parenting
abilities or the children's physical and emotional *178
condition. Instead, discussion focused solely on the adequacy of the current
case plan and the need for new case plans. Although labelled a disposition
order, the order issued that same day simply maintained the status quo
until the confusion created by the parents' announcement of change in
marital status could be sorted out. During a hearing on visitation six
weeks later, the parties discussed the effect of the July 27 hearing.
All parties and the court agreed there had been no disposition hearing
and that disposition was still before the court. Ultimately, the court's
extensive findings detailing nearly five years of evidence of the parents'
inability to care adequately for the children are sufficient to support
the court's conclusion that it was in the best interests of the children
to terminate parental rights. Because the court's finding of change in
circumstances was unnecessary, we do not address the mother's argument
that modification of a disposition order due to change in circumstances
cannot be supported without a prior approved case plan.
Our prior decisions do
not affect our decision here. We have previously held that a court cannot
continue a disposition hearing to determine how the situation of a child
or a parent will change over time. In
re B.B., 159
Vt. 584, 588, 621 A.2d 1270, 1273 (1993) ; In
re R.B., 152
Vt. 415, 422, 566 A.2d 1310, 1313-14 (1989), cert.
denied by Appleby
v. Young, 493
U.S. 1086, 110 S.Ct. 1151, 107 L.Ed.2d 1055 (1990) ; In
re A.A., 134
Vt. 41, 43, 349 A.2d 230, 232 (1975). In all those cases, however, a full
disposition hearing was held, see, e.g., In
re B.B., 159
Vt. at 585, 621 A.2d at 1271 (“court took extensive evidence at the disposition
hearing”), and the hearings were continued for other reasons: to allow
the court to accept additional evidence on a parent's progress, id.
at 586, 621 A.2d at 1271, or to facilitate settlement of a contested disposition,
In re R.B.,
152 Vt. at 422, 566 A.2d at 1313-14. Holding proceedings open to allow
admission of evidence of a parent's improvement is impermissible, because
it places a child “in a state of continuing limbo rather than creating
a stable living arrangement, as the law requires.” In
re R.B., 152
Vt. at 422, 566 A.2d at 1314.
Such was not the situation
here. The hearing was not continued to allow additional evidence of the
parents' improvement. Rather, it was continued as a result of the parents'
announcement of their separation. After discussion among the parties and
the court, the July 27 hearing was terminated and rescheduled for a date
when case plans more appropriate to the parents' marital situation would
be available. The court was not required to hold a disposition hearing
when all *179
parties agreed they were not prepared to address what was in the children's
best interests.
Nonetheless, the mother
claims that terminating her parental rights without an approved case plan
is reversible error because she was never given information on how she
could get her children back. The court's findings of fact clearly refute
this argument. SRS developed a case plan for the parents on March 14,
1994, which it reviewed with them on March 31, 1994.
Both parents' participation
in the programs outlined in the plan belies the mother's allegation that
she could not meet “expectations that were never announced.” Noting the
specific programs offered to both parents, including individual counseling
and the Nurturing Program for the mother, and parent education, supervised
visitation, and other casework services for both parents, the court made
detailed findings on the parents' participation in these programs and
the lack of improvement in each. Both parents were told that supervised
visits were an opportunity to demonstrate improved parenting skills. Nevertheless,
the mother continued to act inappropriately and to fly into rages during
visits, while the father did nothing to curb the mother's behavior. The
evidence supports the court's finding that the March 1994 case plan gave
the parents full opportunity to **287
develop and demonstrate improved parenting skills, and that it was in
the children's best interests to terminate parental rights when the parents
failed to make improvement.
Next, the mother argues
that the court erred in adopting findings from the CHINS proceeding in
the termination order because of the differences in burdens of proof.
While the State's burden in a CHINS merits hearing is proof by a preponderance
of the evidence, this burden rises to clear and convincing evidence in
a proceeding to terminate parental rights. In
re J.R., 164
Vt. 267, 270, 668 A.2d 670, 673 (1995).
In the termination order,
the court first analyzed the facts under each of the 33 V.S.A. §
5540 factors and found, by clear and convincing evidence, that it was
in the best interests of the children to terminate parental rights. In
addition, the court incorporated certain findings from the CHINS proceeding.
Although the CHINS court was required to determine by only a preponderance
of the evidence that the children were in need of care and supervision,
the court found by the higher standard of clear and convincing evidence
that J.T. was without the proper parental care necessary for her physical
and *180
emotional well-being and that C.T. was without the proper parental care
necessary for her physical well-being. The argument that the trial court
could not incorporate findings based on clear and convincing evidence
from the CHINS proceeding is without merit.
The father argues that
the court erred in failing to make specific findings concerning whether
SRS made reasonable efforts to assist him. Under 33 V.S.A. § 5540,
the court is required to make specific findings on four statutory considerations.
Whether SRS made reasonable efforts to assist the parents is not one of
them, however; therefore, specific findings are not required. Cf. In
re K.H., 154
Vt. 540, 541-43, 580 A.2d 48, 49 (1990), cert.
denied by D.H.
v. Vermont Dep't of Social & Rehabilitation Servs.,
498 U.S. 1070, 111 S.Ct. 791, 112 L.Ed.2d 853 (1991) (court not required
to make findings concerning SRS's reasonable efforts to return child to
home under Adoption Assistance and Child Welfare Act).
Any assistance SRS provides
to troubled parents is, however, a factor in determining whether SRS met
its burden of showing that a parent is unlikely to be able to resume parental
duties within a reasonable period of time. 33 V.S.A. § 5540(3) ;
see In re H.S.,
161 Vt. 83, 87, 632 A.2d 1106, 1108 (1993) (SRS's intensive work with
mother showed reasonable efforts to assist her attempt to resume parental
duties). Here, the court's findings on the services offered to the father
and his lack of benefit from the programs support its conclusion that
the father failed to recognize and address deficiencies in his own parenting
skills, and that, even if he remained separated from the mother, he would
be unable to resume parenting within a reasonable period of time. Although
the father attended marriage counseling with the mother beginning in February
1994, the counselor concluded that the mother's intimidation prevented
the father from contributing to a stable home. Supervised visits with
the children were an opportunity for both parents to show improved parenting
skills, but the father “did nothing to curb the rage or reign in the erratic
behaviors” of the mother. The court found that SRS attempted to provide
additional services to the father, but that he made no effort to revise
his work schedule to enable participation. The father has failed to show
these findings to be clearly erroneous.
II.
Both parents argue that
the court erred in failing to provide notice under the Indian Child Welfare
Act once the court had reason to *181
believe that children of Indian ancestry were involved in the proceeding.
We agree, and remand to the trial court for notice as required by the
Act.
The Indian Child Welfare
Act (ICWA) of 1978 was enacted to protect the interests of Indian children
and promote the stability and security of Indian families and tribes.
25 U.S.C. § 1902 (1988 & Supp. II 1990) ; In
re M.C.P.,
153 Vt. 275, 282, 571 A.2d 627, 631 (1989). The father correctly notes
that the Act is jurisdictional, In
re M.C.P.,
153 Vt. at 289, 571 A.2d at 634; In
re **288
N.A.H.,
418 N.W.2d 310, 311 (S.D.1988), and therefore, its applicability may be
raised by any party or by the court itself at any time. See Woodard
v. Porter Hosp., Inc.,
125 Vt. 264, 266, 214 A.2d 67, 70 (1965). Despite the dissent's lament
that the ICWA was not adequately raised before the trial court, even when
a jurisdictional issue is never raised by a party we must take action
on our own motion, if necessary, when a defect appears. See Murphy
Motor Sales, Inc. v. First Nat'l Bank of St. Johnsbury,
121 Vt. 404, 406, 159 A.2d 94, 96 (1960) (“[W]hen such fact [lack of jurisdiction]
appears we do not wait for parties to object, but this Court must act
of its own motion.”).
The ICWA requires that:
[i]n
any involuntary proceeding in a State court, where the court knows or
has reason to know that an Indian child is involved, the party seeking
the ... termination of parental rights to [ ] an Indian child shall notify
the parent or Indian custodian and the Indian child's tribe ... of the
pending proceedings and of their right of intervention. If the identity
or location of the ... tribe cannot be determined, such notice shall be
given to the Secretary ....
25
U.S.C. § 1912(a). The statute defines Indian child as “any 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.” Id.
§ 1903(4). Although the ICWA states it is the duty of the party seeking
termination of parental rights to give notice, we have found that this
duty also extends to the court. See In
re M.C.P.,
153 Vt. at 288, 571 A.2d at 634 (ICWA requires that trial court give notice
to tribe); see also In
re D.S., 577
N.E.2d 572, 575 (Ind.1991) (remanded for trial court to serve notice to
tribe).
*182
Although the applicability of the ICWA was not raised at the trial level,
the possible Indian ancestry of the children was brought to the attention
of the trial court. When the mother, father, and children underwent a
family evaluation upon referral by SRS, the father told a psychologist
that his father was a “full-blooded Mohican.” The psychologist included
the statement in her report to SRS. Although the statement appears in
the middle of a sixty-page report, the report figured prominently in SRS's
decision to seek termination of parental rights, was admitted into evidence
during disposition hearings, and was referred to in the court's findings
of fact. Neither the agency nor the court can claim unawareness of information
found in a report ordered and relied upon for disposition.
We conclude that the trial
court had a duty to provide notice once it had reason to believe the children
were of Indian ancestry. The Bureau of Indian Affairs (BIA) of the Department
of Interior has issued “Guidelines for State Courts; Indian Child Custody
Proceedings,” outlining situations where a court should know that the
child involved is an Indian child, thus requiring the court to notify
the tribe. See In
re M.C.P.,
153 Vt. at 286, 288, 571 A.2d at 633, 634. One situation is where “[a]ny
public or state-licensed agency involved in child protection services
or family support has discovered information which suggests
that the child is an Indian child.” 44 Fed.Reg. 67,584, 67,586 (1979)
(emphasis added). Such information serves to trigger inquiry by the court
and the parties to determine whether the child is an Indian. Id.
In any event, even if
the issue was not clearly in front of the trial court, it has certainly
been presented for our consideration by all of the parties to the appeal.
The most obvious circumstance that serves to trigger potential application
of the ICWA is where “[a]ny party to the case, Indian tribe, Indian organization
or public or private agency informs the court that the child is an Indian
child.” 44 Fed.Reg. 67,584, 67,586. Both the mother and the father have
informed this Court of their belief that the children are Indian children
based on the father's understanding that his father was a full-blooded
Native American. Inasmuch as this is a jurisdictional issue that can be
raised at any time before this Court and an issue that requires action
elsewhere before it can be resolved, we must remand in order that the
matter be referred to the proper authority.
**289
SRS argues, however, that the parents have the burden of showing that
the ICWA applies and that they failed to meet that burden. We disagree.
As stated in In
re M.C.P.,
the tribes are in a *183
better position than the parents, the agency, or the court to determine
potential membership, and the court should defer to that expertise. 153
Vt. at 285-86, 571 A.2d at 633. In fact, the BIA declined to define “member
of a tribe” when promulgating regulations to implement the ICWA, noting
that the term is defined by tribal law or tribal custom. 44 Fed.Reg. 45,096,
45,100 (1979). It is impossible for a tribe to determine whether a child
is a tribal member or eligible for membership if it never receives notice
of the proceeding. Only after notice has been provided and a tribe has
failed to respond or has intervened but is unable to determine the child's
eligibility for membership does the burden shift to the parties to show
that the ICWA still applies. See In
re A.G.-G.,
899 P.2d 319, 322 (Colo.Ct.App.1995) (after no tribe responded to notice
given to BIA, party asserting applicability has burden to show child is
“Indian child” under ICWA); In
re J.L.M.,
234 Neb. 381, 451 N.W.2d 377, 385, 387 (1990) (after tribe concluded children
not eligible for membership, party seeking to invoke ICWA has burden to
show Act applies).
SRS does raise a valid
concern regarding the difficulty created when the only information provided
is the father's vague statement that his father was “full-blooded Mohican.”
The ICWA applies only to Indian tribes or nations that are recognized
as eligible for services provided by the BIA. 25 U.S.C. § 1903(8).
Here, the father asserts that “Mohican” is the same as Mohegan, a tribe
recognized by the BIA for purposes of the ICWA. 60 Fed.Reg. 9250, 9252
(1995). In fact, authorities split over whether Mohican is an alternate
spelling of Mohegan, a tribe to which the ICWA applies, or Mahican, a
tribe not recognized by the BIA and therefore not under ICWA jurisdiction.
Compare C. Waldman, Encyclopedia
of Native American Tribes
142 (1988) (Mohegan: “a famous tribe ... because of the novel The
Last of the Mohicans”)
with 18 Encyclopedia
Americana 118
(1989) (Mahican: “They are the tribe about whom James Fenimore Cooper
wrote The Last
of the Mohicans.”).
Fortunately the courts
are not required to become experts in tribal genealogy. “If the identity
or location of the Indian parents ... or the child's
tribe cannot
be determined, notice of the pendency of any involuntary child custody
proceeding ... in a state court shall be sent ... to the appropriate [BIA]
Area Director....” 25 C.F.R. § 23.11(b) (1996) (emphasis added).
The regulations provide specific guidance on where notice should be sent
for proceedings in Vermont, id.
§ 23.11(c)(1) , and what information should be included in the notice,
id.
§ 23.11(d). Upon receipt of notice, the BIA must make *184
“reasonable documented efforts” to locate and notify the tribe of the
proceeding within fifteen days. Id.
§ 23.11(f). The court erred in failing to provide such notice to
the BIA.
The mother argues the
court's failure to provide notice under the ICWA requires reversal of
the termination order. We disagree. Such a remedy is not warranted where
the only error
is failure to provide notice and there is no strong showing that the ICWA
applies. In
re M.C.P.,
153 Vt. at 289, 571 A.2d at 635. Therefore, the case is remanded to the
trial court for notice to be given to the BIA. If no tribe is located,
or a tribe is located but fails to respond, or the appropriate tribe determines
that the children are not eligible for tribal membership, the original
order will stand. If a recognized tribe does conclude that the children
meet the ICWA definition, further proceedings consistent with the requirements
of the ICWA will be necessary.
Remanded
to the family court for notice to be given to the Bureau of Indian Affairs
in accordance with the Indian Child Welfare Act and for proceedings not
inconsistent with this opinion. If no tribe seeks to intervene or if,
after intervention, the ICWA is found to not apply, the order terminating
parental rights to J.T. and C.T. is affirmed. If a tribe does respond
and determines that the children qualify as Indian children under the
ICWA, then the termination order and the merits (CHINS) order are vacated,
and further proceedings consistent with the Act will be necessary.
**290
MORSE, Justice, dissenting.
I
concur in the affirmance, but I dissent that it be conditional on giving
notice to the Bureau of Indian Affairs.
The sole basis for this
Court to conclude that such notice is required under the Indian Child
Welfare Act (Act) is a passing observation in a clinical psychologist's
report (referred to in the trial record as the “Cone report”) that father
told the clinician he was the son of a “full-blooded Mohican.” While the
Court acknowledges that this brief reference appears in the middle of
a sixty-page psychiatric evaluation of the family in question, this does
not adequately place the matter in context. Department of Social and Rehabilitation
Services (SRS) involvement with this family began in 1989. During the
six-year period preceding the parental termination action, both parents
underwent extensive and continual evaluations and counseling, generating
numerous disposition reports, case plans, and psychological assessments.
Many of these were introduced into evidence. As the trial court observed,
the parents “have been exposed to just about *185
every type of parental development program reasonably available in the
area.... Therefore, the record contains detailed chronicles of the efforts
of the [parents] ... to improve parenting and other skills.” Yet, with
the sole exception of the statement in the Cone report referred to above,
nothing-not a single word or reference-appears anywhere in the trial exhibits
or testimony concerning anything even remotely related to Native Americans.
No witness testifying under oath, no affidavit by any interested party,
no attorney, no social worker familiar with the family, made even the
slightest allusion to a possible Indian connection, much less to the possibility
that an Indian child was involved in the matter.
All that appears in the
record is a hearsay statement by the father in the report of a psychologist
who had no previous counseling experience with the family, and thus no
basis whatsoever to evaluate the statement's credibility. Despite her
unfamiliarity with the case, however, the psychologist observed substantial
“discrepancies between [father's] accounts and those of others.” She noted,
for example, that “his description of his childhood given to this evaluator
was markedly different from what he reported” to another clinician. “Thus,”
she concluded, “[father] may not be an entirely reliable informant.”
This, then, is the sole
evidentiary basis of the Court's holding: an isolated hearsay statement
made to a single clinician unfamiliar with the family but sufficiently
aware of discrepancies in father's account of his childhood to warn that
he “may not be an entirely reliable informant,” a statement that finds
not even a whisper of corroboration in other evaluations by social workers
who had worked with the family during its six years of involvement with
SRS, a statement utterly ignored by trial counsel, and unconfirmed by
the one person in the best position to know its reliability-the declarant.
This is the evidence, in the Court's considered judgment, that should
have provided the trial court with “reason to know that an Indian child
[was] involved” and thus trigger the federal law's notice requirement.
25 U.S.C. § 1912(a) (1988 & Supp. II 1990). And this is the basis,
finally, for the Court's conclusion that the order terminating parental
rights-an order supported by overwhelming evidence of physical and sexual
abuse of the minor children-must be indefinitely *186
delayed, along with all hope of a favorable adoption, while the matter
wends its way through the federal bureaucracy. FN*
FN*
The Act purports to place some time limits upon the process. It provides
that the Bureau of Indian Affairs shall have fifteen days to give notice
to the tribe, that no proceeding shall be held until at least ten days
after receipt of such notice by the tribe, and that the tribe shall, upon
request, be granted an additional twenty days to prepare for such proceeding.
25 U.S.C. § 1912(a). The federal rules, however, state that if the
Bureau is unable to verify that the child meets the criteria of an Indian
child as defined in 25 U.S.C. § 1903, or is unable to locate the
Indian custodians, it shall so inform the court and “state how much more
time ... will be needed.” 25 C.F.R. § 23.11(f) (1996). Given the
total uncertainty surrounding father's oblique hearsay reference (did
he mean “Mohican” or “Mahican” or “Mohegan”?) the delay in this case may,
unfortunately, be substantial.
To credit an argument
of such obvious insignificance, particularly when it was never **291
raised below notwithstanding the fact that father was an active litigant,
defies reason. If there were any possibility of truth to the reference,
surely father or his attorney would have referred to it at some stage
of the litigation. And even if he and all of the lawyers in this case
were unaware of the legal significance of a parent of Indian heritage,
surely that fact-if it was a fact-would have been mentioned somewhere
else in the “detailed chronicles” of the parents' six-year involvement
with SRS.
The real tragedy of today's
decision is the open-ended delay to establishing a permanent and stable
home for these abused children. The irony is that such delay is totally
unnecessary. My research has not disclosed a single federal or state decision
requiring notice under 25 U.S.C. § 1912(a) on the basis of evidence
of a similar nature. The seminal Vermont decision applying the Act, In
re M.C.P.,
153 Vt. 275, 571 A.2d 627 (1989), observed, to be sure, that courts have
accorded a “broad reading to the obligation to give notice ... even where
it is unclear that the child involved is an Indian child.” Id.
at 287, 571 A.2d at 633. In that case, however, the trial court had been
“informed on numerous occasions that both the juvenile and her adoptive
parents [were] of Native American Indian origin.” Id.
at 284, 571 A.2d at 632. Furthermore, the juvenile's father himself had
testified that he was a full blooded Mohawk Indian. Id.
The facts here, as summarized above, could not be less similar. The cases
on which M.C.P.
relied are equally distinguishable. In
re H.D., 11
Kan.App.2d 531, 729 P.2d 1234 (1986), was a termination-of-parental rights
case in which the mother testified that she was 15/32 Indian blood of
the Cherokee tribe. Id.
at 1236. The Kansas court held that the undisputed evidence of the mother's
heritage was sufficient proof of the children's Indian descent to raise
the notice requirement of the Act. Id.
at 1239. The facts were similar *187
in In re Junious
M., 144 Cal.App.3d
786, 193 Cal.Rptr. 40 (1983), where counsel for the mother raised the
Act with the trial court, and the mother testified that she was a member
of an Indian tribe. Id.
at 42-43. Under the circumstances, the Court of Appeal held that notice
to the tribe was required. Id.
at 43-44. Finally, in In
re Dependency of Colnar, 52
Wash.App. 37, 757 P.2d 534 (1988), the mother's attorney raised the issue
with the trial court as to whether the Act should apply, and the mother
testified that she was one-quarter Apache Indian. Id.
at 535. The court held that this claim was sufficient to require the trial
court to give notice to the Apache tribe, even though the applicable state
agency had filed an affidavit stating that a state investigation showed
the child to not be eligible for membership. Id.
As these and other cases
demonstrate, the courts have accorded a broad but sensible interpretation
of what constitutes “reasonable grounds,” Colnar,
757 P.2d at 536, under § 1912(a) to “know [ ] or ha[ve] reason to
know that an Indian child is involved.” 25 U.S.C. § 1912(a). Until
today, none has ever applied the notice requirement absent some affirmative
effort by the parties to invoke the Act. Even the very liberal nonbinding
“Guidelines for State Courts; Indian Child Custom Proceedings,” on which
the Court places so much reliance, leave ample room for reasonable judgments.
One of the circumstances listed in the Guidelines is where a child protection
service “has discovered information which suggests that the child is an
Indian child.” 44 Fed.Reg. 67,584, 67,586 (1979). This is not, as the
Court implies, a mandate for notice upon the mere mention of an Indian
tribe somewhere in the record, no matter how ephemeral, and completely
regardless of context. The dictionary defines “suggest” as “[t]o cause
to be present to the mind as an object of thought, an idea to be acted
upon ... to propose as an explanation or solution.” 17 The Oxford English
Dictionary 142 (2d ed.1989). This implies at least some substance to the
proposition “suggested,” some “idea to be acted upon.” The isolated hearsay
reference in the psychiatric report does not rise even to this level,
much less to the level of a “reason to know that an Indian child [was]
involved.” 25 U.S.C. § 1912(a).
Plainly the notice issue
was an obvious throwaway by appellate counsel in light of the record.
Unfortunately, the Court has embraced it. It is a shame the Court does
**292
not give equal credence to the trial court's comprehensive analysis, which
noted the “fears of the children regarding the uncertainty of their future,”
and found that “[p]ermanency is an important consideration for these children
and ... should not be delayed further.” The Court has needlessly prolonged
their ordeal.
I am authorized to say
that Chief Justice Allen joins in this dissent.
Vt.,1997.
In
re J.T.
166
Vt. 173, 693 A.2d 283
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