(Cite
as: 92 Wash.App. 762, 964 P.2d 404)
Court
of Appeals of Washington,
Division
1.
In
re the DEPENDENCY OF E. S., Minor Child,
In
re the DEPENDENCY OF C. S., Minor Child,
STATE
of Washington, D.S.H.S., Respondent,
v.
PRISCILLA
S., Appellant.
Nos.
39312-0-I, 39313-8-I.
Oct. 12, 1998.
**406
*765
Eric J. Nielsen, Nielsen, Broman & Associates, Seattle, for Appellant.
Delores A. Peterson,
Assistant Attorney General, Social & Health Services,
Seattle, for Respondent.
KENNEDY, Chief Judge.
Priscilla S. appeals
the order terminating her parent-child relationships with her daughter,
E. S., and her son, C. S., contending that the trial court erred by denying
the Fort Peck Assiniboine Sioux Tribe's motion to transfer jurisdiction
to the tribal court under the Indian Child Welfare Act (ICWA).
[FN1] **407
Because the Tribe had actual notice of the termination proceedings by
no later than *766
March 20, 1996, when its motion to intervene in the termination proceedings
was granted, and did not move to transfer jurisdiction until June 4, 1996--13
days before the termination hearing was scheduled to begin--the trial
court properly denied the motion as untimely. Accordingly, we affirm.
FN1.
The mother's remaining contention, that the State failed to meet its burden
of proving all the necessary elements to properly enter the termination
order, which we conclude is without merit, is treated in the unpublished
portion of this opinion.
FACTS
Priscilla S. gave birth to five children between 1988 and 1994. The children's
fathers are unknown. The State appointed legal guardians for the two oldest
children and allowed the youngest child to live with the mother. This
appeal involves her remaining children, E.S. and C. S.
The mother has a history
of drug and alcohol abuse and has resorted to criminal activity to obtain
money. Twice before the commencement of termination proceedings, she entered
court-ordered drug treatment programs but was unwilling or unable to successfully
complete them. She describes herself as a cocaine and marijuana addict,
and admits that she used drugs "off and on" during her first
four pregnancies. E.S. was born with drugs in her system. Although the
hospital did not detect drugs in C. S., the mother tested positive for
cocaine during her pregnancy with C. S.
The State filed dependency
petitions on behalf of E.S. in May 1993, and C.S. in June 1994, alleging
that the mother abused or neglected these children, and that they were
in danger of substantial damage to their psychological or physical development.
In both petitions, the State noted that the "Indian Child Welfare
Act may apply" because E.S. and C.S. "may be [Indian children]
as defined in 25 U.S.C. [section] 1903(4)." Clerk's Papers at 1,
137. Without mention of the ICWA or any tribe, the trial court declared
E.S. dependent by default. Regarding C. S., the court noted that *767
the ICWA does not apply because "the child is not enrollable."
Id.
at 155. Nonetheless,
it stated that C. S.'s tribe had been notified.
[FN2] Then, per an agreement with the mother, the court declared C.S.
dependent. The State then placed E.S. and C.S. with foster families that
had significant ties to the Indian community.
FN2.
The record contains two notices, which are dated June 9, 1994, and August
16, 1994, that dependency proceedings had commenced regarding C.S. The
notices were addressed to the Assiniboine Sioux Tribe of Montana. There
are no return receipts. The agreed dispositional order in C. S.'s dependency
proceedings states: "The child's tribe has been notified of this
proceeding by registered mail received at least 15 days prior to the hearing."
Clerk's Papers at 255. It also contains the following language: "A
PETITION FOR PERMANENT TERMINATION OF THIS PARENT-CHILD RELATIONSHIP MAY
BE FILED IF THE CHILD IS PLACED OUT OF THE HOME PURSUANT TO AN ORDER OF
DEPENDENCY." Id.
at 261. The same document contains handwritten language averring as follows:
"Per phone contact with tribal attorney Gary Beaudry the child is
not enrollable." Id.
at 255.
In August 1995, when
the mother was pregnant with her fifth child, she entered an in-patient
treatment program on her own initiative. In September 1995, the State--following
the trial court's order--petitioned for termination of her parent-child
relationships with E.S. and C. S., alleging that her failure to maintain
a stable residence and her lack of a relationship with the children warranted
termination. In the petition, the State noted that although the mother
was an enrolled Assiniboine Sioux, the Tribe was notified and indicated
that the children were not eligible for enrollment. Accordingly, it maintained
that E.S. and C.S. were "not [members] of or eligible for membership
in an Indian tribe and the Indian Child Welfare Act, 25 U.S.C. §
1901 et seq.
does not apply to the proceedings." Id.
at 40, 182. The State did not provide a return receipt showing delivery
of written notice to the Tribe when it filed the petition for termination.
On
March 20, 1996, with the mother's consent, the Fort Peck Assiniboine Sioux
Tribe moved to intervene in the termination proceedings, alleging that
E.S. and C.S. were Indian Children under 25 U.S.C. section 1903(4), who
were *768
eligible for membership in **408
the Tribe.
[FN3] The trial court granted this motion. Three months later, on June
4, 1996, the Tribe moved, under the ICWA, to transfer jurisdiction over
the termination proceedings to the Fort Peck Tribal Court in Poplar, Montana.
By this time, the termination hearing was scheduled to begin in 13 days.
Although the trial court acknowledged that the "children are now
enrolled members of the Tribe, each being 7/32 Indian," it denied
the motion to transfer because it was "too late." Id.
at 81.
FN3.
A tribe has authority to determine its own membership. In
re Dependency of Smith,
46 Wash.App. 647, 651, 731 P.2d 1149 (1987).
At the time of the termination
hearing, which actually commenced in August 1996, the mother had been
"clean and sober" for 1 year. Nonetheless, after 3- 1/2 days
of testimony, the trial court found that continued custody with the mother
would cause the children serious emotional or physical damage. It concluded
that the State had established beyond a reasonable doubt the ICWA requirements
for termination,
[FN4] as well as the state law requirements.
[FN5] Accordingly, it terminated the mother's parent-child relationships
with E.S. and C.S. The mother appeals.
FN4.
Under the ICWA, 25 U.S.C.A. § 1912(f) (1983), the State must prove
beyond a reasonable doubt that "custody of the child by the parent
... is likely to result in serious emotional or physical damage to the
child." In addition, there is a preference for permanent placement
with Indian families. Felix S. Cohen, Cohen's
Handbook of Federal Indian Law
196, 348 n. 4 (1982 ed.1982).
FN5.
To terminate parental rights under RCW 13.34.180, the State must
prove by clear, cogent, and convincing evidence that the child has been
found to be dependent; the court has entered a dispositional order; the
child has been removed from the custody of the parent for a period of
at least 6 months; the services ordered have been offered or provided
and are reasonably available and capable of correcting the parental deficiencies;
there is little likelihood that conditions will be remedied so that the
child can be returned to the parent in the near future; and continuation
of the parent and child relationship clearly diminishes the child's prospects
for early integration into a stable and permanent home.
DISCUSSION
I. The Tribe's
Motion to Transfer Jurisdiction
Congress
enacted the ICWA to prevent states from placing Indian children in non-Indian
homes, thereby *769
preserving the cultural, social, and economic factors of tribal sovereignty.
Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989); In
re Adoption of Crews,
118 Wash.2d 561, 567-69, 825 P.2d 305 (1992). The ICWA does not divest
state courts of their jurisdiction over children of Indian descent who
live off the reservation. Instead, it provides concurrent jurisdiction
to state and tribal courts with a preference for tribal courts that can
be overcome upon a showing of good cause:
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[.]
25 U.S.C.A. § 1911(b) (1983); Crews,
118 Wash.2d at 568, 825 P.2d 305.
The burden of establishing
good cause by clear and convincing evidence is on the party opposing the
transfer. People
ex rel. A.T.W.S.,
899 P.2d 223, 225 (Colo.App.1994); In
re M.E. M.,
195 Mont. 329, 635 P.2d 1313 (1981). By its nature, this determination
is subjective and requires a balancing of the State's, the child's, and
the Tribe's rights. Yavapai-Apache
Tribe v. Mejia,
906 S.W.2d 152, 163 (Tex.Ct.App.1995). The ultimate determination of good
cause is within the discretion of the trial court. A.T.W.S.,
899 P.2d at 225; Mejia,
906 S.W.2d at 163. Conflicting evidence is viewed in the light most favorable
to the prevailing party below. Washington
Belt & Drive Sys., Inc. v. Active Erectors,
54 Wash.App. 612, 616, 774 P.2d 1250 (1989). This court will overturn
the trial court's ruling only if there is an abuse of discretion, i.e.,
if it is manifestly unreasonable or based upon untenable grounds for untenable
reasons. Coggle
v. Snow, 56
Wash.App. 499, 504, 784 P.2d 554 (1990).
**409
Here, the Tribe moved to transfer jurisdiction to the Tribal Court
and the State opposed transfer because *770
the motion was untimely.
[FN6] The Bureau of Indian Affairs' interpretation of the ICWA provides
that "[g]ood cause not to transfer the proceeding [to tribal court]
may exist if ... [t]he 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." GUIDELINES FOR THE
STATE COURTS; INDIAN CHILD CUSTODY PROCEEDINGS, 44 FED.REG. 67,584, 67,591
(Dep't of the Interior, Bureau of Indian Aff.1979) ("BIA GUIDELINES").
Relying upon these guidelines, the trial court determined that the proceeding
in the present case was at an advanced stage when the motion to transfer
was received and that it was not filed promptly after the Tribe received
notice of the hearing. It therefore concluded that good cause existed
to oppose the transfer and it denied the motion.
FN6.
The State also opposed the Tribe's motion because the evidence necessary
to decide the case could not be adequately presented in the Montana tribal
court without undue hardship to the parties or witnesses. In response,
the Tribe informed the court that the termination proceedings would be
dropped if the case was transferred to the tribal court. Accordingly,
the trial court concluded that hardship did not provide good cause to
deny the transfer.
The BIA guidelines have
no binding legislative effect, but "the construction of a statute
by the executive department charged with its administration is entitled
to great weight." In
re Junious M.,
144 Cal.App.3d 786, 793 n. 7, 193 Cal.Rptr. 40, 43 n. 7 (1983); accord
Mejia, 906
S.W.2d at 164 ("Guidelines should be given important significance.")
The legislative history of the ICWA indicates that the reason the phrase,
"good cause to the contrary" is not defined is to provide state
courts with flexibility in determining the disposition of a child custody
proceeding involving an Indian child. See
Mejia, 906
S.W.2d at 164 (citing H.R. REP. NO. 95-1386, at 21 (2d Sess.1977), reprinted
in 1978 U.S.C.C.A.N.
7530, 7544).
A. Were the Proceedings
at an Advanced Stage?
The Tribe filed its motion
to transfer on June 4, 1996, that is, 9 months after the State petitioned
the trial court for termination, 3 months after the Tribe received actual
notice of the termination proceedings, and *771
13 days before the termination hearing was scheduled to begin. We therefore
conclude that the trial court did not abuse its discretion in concluding
that this proceeding was at an advanced stage when it received the motion
to transfer.
B. When did the Tribe
Receive Notice?
"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." In
re Welfare of M.S. S.,
86 Wash.App. 127, 133, 936 P.2d 36, review
denied, 133
Wash.2d 1008, 943 P.2d 663 (1997), cert.
denied sub nom. Sather v. Oregon,
523 U.S. 1098, 118 S.Ct. 1564, 140 L.Ed.2d 798 (1998); 25 U.S.C.A. §
1912 (1983); RCW 13.34.070(9). This court has held that strict technical
compliance with the notice provision is not an absolute requirement; substantial
compliance is sufficient. M.S.S.,
86 Wash.App. at 134-35, 936 P.2d 36 (finding substantial compliance when
notice was received via overnight mail). "The statute and the case
law, however, have all required actual notice to the tribe of both the
proceeding and the right to intervene." Id.
at 135, 936 P.2d 36 (citing In
re Kahlen W.,
233 Cal.App.3d 1414, 285 Cal.Rptr. 507, 511 (1991)). The State has the
burden of proving that the notices sent complied with the ICWA. Id.
at 136, 936 P.2d 36 (citing In
re N.A.H.,
418 N.W.2d 310, 311 (S.D.1988); In
re L.A.M.,
727 P.2d 1057, 1060-61 (Alaska 1986)). "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."
Id.
at 134, 936 P.2d 36 (citing Kahlen
W., 285 Cal.Rptr.
at 513).
"Indian child"
is defined as any unmarried person who is under age 18 and is either (a)
a member of an Indian tribe or (b) is eligible for membership in an Indian
tribe **410
and is the biological child of a member of an Indian tribe. 25 U.S.C.A.
§ 1903(4) (1983). The BIA guidelines explain, "The determination
by a tribe that a child is or is not a member of that tribe, is or is
not eligible for membership *772
in that tribe, or that the biological parent is or is not a member of
that tribe is conclusive." BIA GUIDELINES, 44 FED.REG. at 67,586;
In re Dependency
of Smith, 46
Wash.App. 647, 651, 731 P.2d 1149 (1987). Although a tribe's declaration
that a child is or is not a member is conclusive, it may nevertheless
change its determination of a child's status. That is, it may determine
at a point in time that a given child is not enrollable and later change
its mind and determine that the child is enrollable. The BIA guidelines
explain that "[i]t is the tribe's prerogative to determine membership
criteria and to decide who meets those criteria." BIA GUIDELINES,
44 FED.REG. at 67,586.
[FN7]
FN7.
The record is silent regarding whether the Tribe changed its membership
requirements during the proceedings involving E.S. and C.S. It is also
silent regarding when E.S. and C.S. became enrolled members of the Tribe.
The document verifying their enrollment is dated June 5, 1996. Clerk's
Papers at 313.
A "termination hearing,
for the purposes of notice and appearance requirements, is a proceeding
separate from any dependency proceedings [.]" In
re Dependency of C.R.B.,
62 Wash.App. 608, 619, 814 P.2d 1197 (1991). "The court's failure
to satisfy the statutory requirements [in termination proceedings] may
not be corrected by relying on evidence presented at the dependency hearings."
Id.
Judge Ramerman found
that "the Tribe, in fact, had notice of the pendency of the dependency
proceedings in 1994, and of the progress of the dependencies since."
Clerk's Papers at 84. Although the evidence in support of this finding
is conflicting, the finding is nevertheless sustainable because it is
supported by substantial evidence in the record. The court had before
it two notices, which the State alleged were sent to the Tribe in 1994,
stating that dependency proceedings had commenced regarding C.S. The record
contains these notices, which were addressed to the Assiniboine Sioux
Tribe of Montana, but it contains no return receipts or other documentation
to prove that the Tribe received them. The court also considered the dispositional
order in C. S.'s dependency proceedings--which was signed by the trial
court, the mother, her attorney, the State's social worker, and the attorney
for the *773
State--that asserts that the Tribe was properly notified of the proceedings.
[FN8]
FN8.
This order was not appealed by the mother or the Tribe.
The court also considered
the declaration of Barbara Jones, the Area Manager for the Division of
Children and Family Services, which states that, although they received
no written response from the Tribe, they consistently sent all documents
regarding the dependency and termination proceedings to the Tribe. In
contrast, the court had before it an affidavit from Gary Beaudry, the
Tribe's attorney, stating, "I would not admit that the Fort Peck
Tribes received proper Notice in the foster care placement proceedings
in these matters." Id.
at 284.
On March 20, 1996, the
Tribe intervened in the termination proceedings. At that time, the State
was aware that the children were, in fact, enrollable and that they were
being enrolled in the Tribe. Accordingly, the State contends that it again
sent notice of the termination proceedings to the Tribe, on May 6, 1996.
Although the record contains no copy of what was actually sent, it does
contain return receipts from the Tribe and Beaudry, indicating that they
each received a registered mailing from the Attorney General's Office.
We strongly urge the
State to train its case workers who deal with Indian children to meticulously
follow the BIA notice requirements and to document the court
files so that the trial and appellate courts can easily determine what
notices were sent by means of corresponding return receipts. We point
out that the BIA guidelines require that originals or copies of each notice
sent under the Act be filed with the court together with return receipts
or other proof of service. BIA GUIDELINES, 44 FED.REG. at 67,588. We highly
recommend that this be **411
done with respect to all such notices. We emphasize that the burden of
proving notice is on the State. M.S.S.,
86 Wash.App. at 136, 936 P.2d 36. Following the BIA guidelines regarding
filing of proof of service in the trial court's file would be the most
efficient way of meeting that burden of proof.
*774
Although that was not done here, the Tribe had actual notice of the termination
proceedings no later than March 20, 1996, when it intervened. The State
may not rely upon evidence presented at the dependency proceedings to
satisfy termination proceedings requirements. C.R.B.,
62 Wash.App. at 619, 814 P.2d 1197. But, flaws in notice of the dependency
proceedings do not in and of themselves abort subsequent termination proceedings
if there has been actual notice of the termination proceedings. Therefore,
the State's failure to document that it provided proper notice of the
dependency proceedings is not fatal to the termination proceedings. Because
substantial evidence supports the trial court's determination that the
Tribe, in this particular case, received actual notice of the termination
proceedings,
as demonstrated by its intervention in those proceedings, we will not
disturb this finding.
[FN9] See M.S.S.,
86 Wash.App. at 134, 936 P.2d 36 (explaining that failure to provide required
notice mandates remand unless tribe has participated in proceedings or
expressly indicated it has no interest in proceedings).
FN9.
At the termination hearing, the mother's attorney revisited this issue
to make a record to preserve the objection for appeal. But the trial court,
Judge Marsha Pechman, clarified, "[T]he issue of jurisdiction has
already been decided. Presumably everything that needs to be in the record
for the purpose of making that decision is already there. I don't have
any basis for redetermining that issue. It's not a decision that I am
going to make again. It's already been made." Report of Proceedings
at 9. The testimony presented merely corroborated the affidavits and documents
that were before Judge Ramerman. At the conclusion of the hearing, Judge
Pechman also found that the Tribe was sent notice of the termination proceedings
with respect to C.S. in 1994.
C. Was the Motion Filed
Promptly after the Tribe Received Notice?
The final issue is whether the petition to transfer jurisdiction, which
was filed June 4, 1996, was filed promptly after the Tribe received actual
notice of the proceedings. Neither the ICWA nor the BIA guidelines specify
a time when a motion to transfer is "promptly" filed. The BIA
guidelines note, "Permitting late transfer requests by persons and
tribes who were notified late may cause some disruption. It will also,
however, provide an *775
incentive to the [State] to make a diligent effort to give notice promptly
in order to avoid such disruptions." BIA GUIDELINES, 44 FED.REG.
at 67,590.
The Supreme Court of
South Dakota addressed this issue in People
ex rel. J.J.,
454 N.W.2d 317 (S.D.1990). Even though the tribe in that case was not
at fault for the untimeliness of its transfer motion, the trial court
denied its motion to transfer, explaining, "In this instance, it
appears to us that honoring the late request for transfer will wreak havoc,
rather than merely disrupt; all of which far outweighs any sanction against
[the State] for not having made a more diligent effort to give notice."
Id.
at 331.
Here, although the Tribe
received notice of the dependency proceedings in 1994 and became a participant
in the termination proceedings by means of intervention in March 1996,
it did not move to transfer jurisdiction until June 1996. In Beaudry's
affidavit, which Judge Ramerman considered, Beaudry stated that it was
not unusual for the Tribe to file a motion to transfer on the heels of
termination petitions because it is the Tribe's policy to protect its
members from termination of parental rights. Accordingly, he averred,
"It is reasonable
and logical that the Fort Peck Tribes only files a motion to transfer
jurisdiction when a matter goes beyond foster care placement." Clerk's
Papers at 285. Yet, Beaudry failed to explain why the Tribe--having actual
notice no later than March 20, 1996--waited until June 1996 to file its
motion to transfer.
When the Tribe moved
to transfer jurisdiction, E.S. and C.S. had been in the system since shortly
after birth--nearly 4 and 2 years, respectively. Further delays would
have caused great disruption to the children. See
J.J., 454 N.W.2d
at 330 (considering the **412
fact that children had been in the system for over 5 years to determine
whether motion to transfer was filed promptly). Despite the Tribe's stated
policy of waiting until the eve of termination to seek transfer, in Washington,
our Legislature and our courts have declared that children have a right
to the speedy resolution of termination proceedings. RCW *776
13.34.020; In
re Dependency of J.W.,
90 Wash.App. 417, 427, 953 P.2d 104 (1998). Our Legislature has also developed
a statutory scheme of making every effort to reunite families before resorting
to termination. RCW 13.34.020. Therefore, children are likely to be in
great need of permanent planning by the time of termination proceedings.
In Washington termination proceedings, the court must also determine that
termination is in the best interest of the child. In
re Dependency
of Ramquist,
52 Wash.App. 854, 863, 765 P.2d 30 (1988). When a conflict arises between
competing interests, the court should focus on the best interests of the
child. In re
Dependency of A.V.D.,
62 Wash.App. 562, 574, 815 P.2d 277 (1991). Although the ICWA provides
that a tribe should determine the best interests of its own members, thus
avoiding the trap of cultural biases, the BIA Guidelines nonetheless give
state courts discretion to deny motions that come too late. BIA Guidelines,
44 Fed.Reg. at 67,591. This implies that the best interest of the child
is a factor when considering the motion at a late stage in the proceedings--after
actual notice to the Tribe-- where granting of the motion would clearly
wreak havoc in the lives of the children.
We emphasize that in
a situation such as this where a tribe has notice of dependency proceedings
and is kept abreast of how things are going, that tribe may properly be
found to have moved for transfer too late on the eve of the termination
hearing. Moreover, the Tribe here waited from March 1996 when it intervened
until June 1996 before it moved to transfer jurisdiction. Three months
is a long time for a young child in need of permanent planning to wait.
For these reasons, we conclude that the Tribe's motion to transfer was
not filed promptly after it received actual notice and intervened in the
termination proceedings.
In sum, the trial court
did not abuse its discretion in denying the motion to transfer
jurisdiction, despite the deficiencies in the State's documentation that
it provided timely notice to the Tribe, because--by whatever means--the
Tribe did receive actual notice of the termination *777
proceedings by no later than March 1996 when it intervened in the proceedings
and the Tribe did not thereafter "promptly" move to transfer
jurisdiction. Moreover, the proceedings complied with the ICWA's substantive
standards, e.g.,
adopting a higher standard of proof for termination and a preference for
Indians as adoptive parents, and permitting the Tribe to intervene when
it sought to do so. Thus, the state court proceedings were in accord with
the policies behind the ICWA.See Felix S. Cohen, Cohen's
Handbook of Federal Indian Law,
196, 348 n. 4 (1982 ed.1982). The record also reflects that the trial
court balanced the rights of the State, the child, and the Tribe, in making
its ruling. See
Clerk's Papers at 21 ("This court finds that the current resources
for the children are appropriate, meet the intent of the ICWA, and will
actively assist the children in maintaining tribal ties.").
In sum, we affirm the
trial court's denial of the Tribe's motion to transfer jurisdiction from
state court to the tribal court.
A majority of the panel
having determined that the remainder of this opinion lacks presidential
value and will not be printed in the Washington Appellate Reports but
will be filed for public record in accord with RCW 2.06.040, it is so
ordered.
WEBSTER and BECKER, JJ., concur.
92 Wash.App. 762, 964
P.2d 404
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