(Cite
as: 52 Wash.App. 37, 757 P.2d 534)
Court
of Appeals of Washington,
Division
2.
In
re the DEPENDENCY OF Emery Titus COLNAR, A Minor.
No.
10547-1-II.
July 12, 1988.
**535 *37
Dianna T. Adams, Belfair (Court Appointed), for appellant.
Kathryn L. Kafka, Asst.
Atty. Gen., Seattle, for respondent.
PETRICH, Judge.
Teresa Dembicer appeals
a judgment terminating her parental rights to her four-year-old son Emery
*38
Titus Colnar born February 20, 1984. Among other claims, she contends
that the State should have been required to satisfy the higher standard
of proof imposed by the Indian Child Welfare Act. Finding no error, we
affirm.
On April 15, 1986, the
State of Washington through the Department of Social and Health Services,
filed a petition for termination of Teresa's parental rights. This petition
followed an order of dependency entered 10 months earlier. The trial court
held a fact finding hearing pursuant to RCW 13.34.180 which revealed that
Teresa suffered from an emotional disorder that would interfere with her
ability to perform her parental duties. The trial court held that it would
be in the best interest of the child to terminate the parent-child relationship.
During this hearing,
Dembicer's counsel raised the issue that the Indian Child Welfare Act,
25 U.S.C. § 1901 et
seq., should
apply to the proceedings, since
Dembicer alleged that she is one-quarter Apache Indian. An affidavit was
filed by a Department caseworker, which indicated that Emery was not qualified
to be enrolled in a tribe. The court ruled that the act did not apply
to the proceedings. This Court granted accelerated review of Dembicer's
appeal.
INDIAN CHILD WELFARE ACT
Dembicer first argues that the Indian Child Welfare Act, 25 U.S.C. §
1901 et seq., should apply to these termination proceedings.
[FN1] She alleges that she is one-quarter Apache Indian, thus making her
son eligible for membership in an Indian tribe.
FN1.
The act requires that under certain circumstances the proceedings for
termination of parental rights of an Indian child be transferred to the
tribal courts of the respective Indian tribes, 25 U.S.C. 1911(b), and
if not transferred, the state court's termination of parental rights requires
a determination, supported by evidence beyond a reasonable doubt, that
continued custody of the child is likely to result in serious emotional
or physical damage to the child. 25 U.S.C. 1912(f).
The Indian Child Welfare Act applies to termination proceedings
where a child is defined as an Indian child. An Indian child is defined
as "any unmarried person *39
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).
An Indian tribe has authority to determine its own membership.
Application of Angus,
60 Or.App. 546, 655 P.2d 208, 212 (1982). Under the Act, additional procedural
requirements and a higher burden of proof are imposed on the State's termination
actions involving Indian children.
Under the provisions
of the Indian Child Welfare Act:
In
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 foster care placement of, or termination of parental rights to, an
Indian child shall notify the parent or Indian custodian in the Indian
child's tribe by registered mail with return receipt requested, of the
pending **536
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 in like manner....[
[FN2]]
FN2.
For proceedings in Washington, notice should be sent to: Portland Area
Director, Bureau of Indian Affairs, 1425 N.E. Irving Street, Portland,
Oregon 97208. 25 CFR 23.11(11).
25 U.S.C. § 1912(a).
Under this section, no further proceedings shall be held until at least
10 days after the receipt of the notice by the tribe or the Secretary
of the Interior.
The issue then becomes
when and under what circumstances must notice of the pending proceedings
be given to the tribe and/or Bureau of Indian Affairs. Although case law
is spotty on what constitutes reasonable grounds under § 1912 to
believe an Indian child is involved in the proceedings, the Bureau of
Indian Affairs has published "Guidelines for State Courts: Indian
Child Custody Proceedings" which clarify this point. 44 Fed.Reg.
67,584-595. These guidelines set forth circumstances that trigger an *40
inquiry by the court and petitioners regarding the child's Indian status
for the purpose of the Act. They provide:
(c)
Circumstances under which a state court has reason to believe a child
involved in a child custody proceeding is an Indian include but are not
limited to the following:
(i)
Any party to the case, Indian tribe, Indian organization or public or
private agency informs the court that the child is an Indian child.
(ii)
Any 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.
(iii)
The child who is the subject of the proceeding gives the court reason
to believe he or she is an Indian child.
(iv)
The residence or the domicile of the child, his or her biological parents,
or the Indian custodian is known by the court to be or is shown to be
a predominantly Indian community.
(v)
An officer of the court involved in the proceedings has acknowledged that
the child may be an Indian child.
44 Fed.Reg. 67,586.
[FN3] See also
In Interest of H.D.,
11 Kan.App.2d 531, 729 P.2d 1234 (1986).
FN3.
The Guidelines at B.1(b) also provide that the determination by the tribe,
or in the absence of the tribe's contrary determination, the Bureau of
Indian Affairs' determination that the child is or is not an Indian child
is conclusive. 44 Fed.Reg. 67,586.
In the present case,
Dembicer alleged that she was of Apache heritage. Therefore, under subsection
B.1(c)(i) of the BIA Guidelines as quoted above, reason to believe that
Emery qualified as an Indian child was appropriately raised. However,
the State failed to give proper notice to the Apache tribe or the Bureau
of Indian Affairs as required under the act and its implementing regulations.
The Department of Social and Health Services, in the process of investigating
Dembicer's claims, contacted the Apache Nation for the purposes of researching
the bloodline of her maternal grandmother. Although the Department's caseworker
asked specific questions regarding the *41
status of Dembicer, her mother and her grandmother, this did not constitute
proper notice under the Indian Child Welfare Act or RCW 13.34.070(9).
[FN4]
FN4.
RCW 13.34.070 provides in part:
"(9)
In any proceeding brought under this chapter where the court knows or
has reason to know that the child involved is a member of an Indian tribe,
notice of the pendency of the proceeding shall also be sent by registered
mail, return receipt requested, to the child's tribe. If the identity
or location of the child cannot be determined, such notice shall be transmitted
to the secretary of the interior of the United States."
Rather than reversing
the proceedings for failure to comply with the notice requirements of
the Indian Child Welfare Act, as was done in In
Interest of H.D., supra,
we remanded this matter to the trial court to make further findings regarding
the Indian status of Emery. On remand, the State notified all appropriate
Apache **537
tribes and the Bureau of Indian Affairs. The trial court found that after
the required notification had been made,
no tribe, individual, or agency of the Federal Government sought to intervene
in these proceedings, and that the child is not enrolled or enrollable
in an Indian tribe. As a result, the trial court concluded that Emery
Titus Colnar is not an Indian child as defined by 25 U.S.C. § 1903(4).
These findings and conclusions are unchallenged. We are satisfied that
Emery Titus Colnar is not an Indian child and thus the Indian Child Welfare
Act does not apply to these proceedings.
A majority of the panel
having determined that only the foregoing portion of this opinion will
be printed in the Washington Appellate Reports and that the remainder
shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
* * *
Judgment affirmed.
ALEXANDER, A.C.J., and
WORSWICK, J., concur.
52 Wash.App. 37, 757
P.2d 534
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