(Cite as: 2002 WL 31409959 (Wash.App. Div. 2))

Court of Appeals of Washington,

Division 2.

In re Parentage of NAPOLEON,

Susan JAMES, Appellant,

v.

Tamara BLACKWELL, Respondent.

No. 27195-8-II.

Oct. 25, 2002.

Appeal from Superior Court of Thurston County; Hon. Christine A. Pomeroy.

Tracey A. Thompson, Eisenhower & Carlson, Seattle, WA, for Appellant.

Toni M. Hood, Foster Foster & Schaller, Olympia, WA, for Respondent.

UNPUBLISHED OPINION

MORGAN, J.

*1 Susan James appeals a judgment that placed her natural son in the custody of an unrelated third party. We remand for supplemental findings or a new trial.

Susan James is a member of the Quinault Indian Nation. Lewis Robert Napoleon is a member of the Squaxin Island Tribe. Their son, Trevor, is an enrolled member of the Quinault Indian Nation.

James and Napoleon lived together from about 1987 to 1995. Trevor was born March 13, 1992. When James and Napoleon separated, Trevor continued to reside with James.

In 1996, one of James' friends was Tamara Blackwell. Although Blackwell is not Native American, she previously had spent 17 years as a foster child on the Quinault Reservation.

On or about March 14, 1996, James asked Blackwell to care for Trevor. James was addicted to drugs and alcohol, and she intended to enter in-patient treatment.

On or about March 26, 1996, Blackwell married Napoleon. According to Blackwell's later statement, she married Napoleon 'primarily to secure the situation with Trevor{.}'  [FN1]

FN1. Report of Proceedings (RP) at 232. Blackwell testified that soon after she began caring for Trevor, it appeared that Napoleon might have to return to jail. She was afraid of losing Trevor, so she called CPS for advice. Someone at CPS suggested that if she married Napoleon, '{t}hen you'd be his stepmother, you know{.}' Napoleon and she 'talked about that,' and 'that's what we ... decided to do.' RP at 13-14.

On April 4, 1996, Napoleon filed a paternity action (Thurston County Superior Court cause number 96-5-50128-8). He named himself as sole petitioner and James as sole respondent. He prayed for an order declaring him to be Trevor's father. In an accompanying declaration, he stated that he was married to Blackwell, and that both he and she were 'asking the court for temporary placement of Trevor ... until this matter can be properly resolved{.}'  [FN2]

FN2. Clerk's Papers (CP) at 375.

In May 1996, Napoleon proposed an order joining Blackwell as a party to the paternity action and placing Trevor exclusively in her care. In a declaration filed pro se on May 9, 1996, James consented to entry of the proposed order. On May 16, 1996, the court entered the order, stating in part that James 'shall have no contact with Trevor ... except as specifically arranged through' Blackwell. [FN3]

FN3. CP at 347.

On October 18, 1999, James moved in the paternity action for an order 'that Trevor be returned to my care and custody.'  [FN4] On October 29, 1999, the court presided over a hearing that was attended by the parties and also by a social service worker employed by the Quinault Indian Nation. According to the clerk's minutes, [FN5] the social worker did not know whether the Nation intended to intervene, but the court said it would allow the Nation to present argument at the next hearing. The court denied James' motion. On June 28, 2000, James moved in the paternity action for unsupervised visitation. In early July, the court denied her request to terminate supervision, but ruled that each of her visits would be for four hours instead of just two hours. In late July, the court set trial in the paternity action for November 27, 2000.

FN4. CP at 305.

FN5. As far as we can tell, this proceeding was not recorded by a court reporter or tape machine.

On August 3, 2000, Blackwell filed a nonparental custody action (Thurston County Superior Court cause number 00-3-00929-2). She listed herself as sole petitioner, and James and Napoleon as respondents. She alleged that 'neither parent is a suitable custodian for {Trevor,}'  [FN6] that she should have custody of him, and that each parent should have 'limited' visitation  [FN7] with 'supervision restrictions.'  [FN8] She did not allege that she was married to Napoleon or related to Trevor by blood or marriage. [FN9]

FN6. Nonparental Custody Petition (NCP) at 3. This document was mistakenly omitted from the Clerk's Papers, even though it had been designated for inclusion therein. It was forwarded to this court when the mistake was discovered.

FN7. NCP at 2.

FN8. NCP at 3.

FN9. According to an unsworn document that the Nation filed later, Blackwell filed to dissolve her and Napoleon's marriage on August 3, 2000.

*2 Also on August 3, 2000, Blackwell asked the court, ex parte, to consolidate the new custody action and the old paternity action under the old action's cause number, and also to require that the nonparental custody action (which was just being filed that day) 'be considered as if it were filed in May 1996 when the petitioner, Tamara Blackwell, was joined as a party to the {p} aternity action.'  [FN10] The court signed the ex parte order.

FN10. CP at 382.

James appeared in the new action through counsel. Although Napoleon had previously been represented by Blackwell's counsel, he now appeared pro se. No one notified the Quinault Indian Nation as required by 25 U.S.C. § 1912(a).  [FN11]

FN11. 25 USC § 1912(a) provides:

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 and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.

The Nation learned of the new action in some way not shown by the record. Its attorney then asked its tribal court to accept jurisdiction of the custody proceeding. On August 17, 2000, the tribal court issued an order in which it agreed to assume jurisdiction if the superior court would transfer jurisdiction.

On August 29, 2000, the Nation moved in the Thurston County Superior Court for an order transferring the case to tribal court. It relied on 25 U.S.C. § 1911(b), and it attached a copy of the tribal court's order from August 17, 2000.

For reasons not shown in the record, the Nation did not present its motion to the court for decision until a hearing held on November 14, 2000. At that hearing, according to the clerk's minutes, the Nation's attorney was present and argued that the case should be transferred to the Tribal court. James seems to have joined orally in the Nation's motion. Blackwell argued that the case should be kept in superior court. Napoleon neither objected nor consented to the transfer. The court orally denied the motion to transfer and later, on November 30, 2000, entered a written order to that effect.

Both the paternity case and the nonparental custody case were tried from December 12, 2000 to December 14, 2000. The court heard and relied on testimony from a guardian ad litem named Angela Rinaldo and a counselor named Jay Kempf. Kempf had been employed for several years at the Chehalis Tribal Center. In colloquy at the end of the case, the court focused exclusively on Trevor's 'growth and development,'  [FN12] as opposed to potential harm from placement with James.

FN12. E.g., RP at 411-12.

In written findings entered on March 9, 2001, the court found (1) that Napoleon was Trevor's biological father but that he was presently unfit;  [FN13] (2) that James had been unfit 'as late as 1998' and 'more probabl{y} than not' had 'relapsed within the last six months{;}'  [FN14] (3) 'that there is clear and convincing evidence that it would be detrimental to Trevor Napoleon's growth and development to be removed from Tamara Blackwell's care and custody{;}'  [FN15] and (4) that it was in Trevor's 'best interest ... to reside with Tamara Blackwell.'  [FN16] The court did not find that placing Trevor with James would be 'likely to result in serious emotional or physical damage.'  [FN17] Based on In re Marriage of Allen [FN18] and In re Custody of Stell, [FN19] the court ordered that Blackwell have custody of Trevor, and that James have supervised visitation with Trevor 'every other weekend on Sunday for four (4) hours{.}'  [FN20]

FN13. No one appeals the court's ruling that Napoleon is Trevor's biological father, and nothing in this opinion disturbs that ruling.

FN14. CP at 43.

FN15. CP at 44.

FN16. CP at 45.

FN17. See 25 U.S.C. § 1912(e).

FN18. In re Marriage of Allen, 28 Wn.App. 637, 626 P.2d 16 (1981).

FN19. In re Custody of Stell, 56 Wn.App. 356, 783 P.2d 615 (1989).

FN20. CP at 21-23.

*3 On appeal, James makes two claims. One is that the trial court erred by declining to transfer jurisdiction to the Nation's tribal court. The other is that the trial court erred at trial. We discuss jurisdiction first.

I.

James first claims that '{t}he trial court erred in denying the Quinault Indian Nation's Petition to Transfer Jurisdiction.'  [FN21] Blackwell acknowledges that Trevor is an Indian child  [FN22] not domiciled on a reservation, [FN23] and that her nonparental custody petition was an involuntary proceeding for foster care placement  [FN24] within the meaning of the Indian Child Welfare Act (ICWA), codified in Chapter 21 of Title 25, United States Code. She disputes, however, that the superior court erred by not transferring jurisdiction.

FN21. Br. of Appellant at 1.

FN22. See 25 U.S.C. § 1903(4).

FN23. See 25 U.S.C. § 1903(10).

FN24. See 25 U.S.C. § 1903(1)(i).

James' first claim is controlled by § 1911 of ICWA. That section provides in part:

(a) Exclusive jurisdiction

An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

(b) Transfer of proceedings; declination by tribal court

In any State court proceeding for the foster care placement of ... 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.

 Section 1911 lies '{a}t the heart of the ICWA{.}'  [FN25] Subsection  (a) creates exclusive tribal court jurisdiction over Indian children domiciled on the reservation. Subsection (b) 'creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation{.}'  [FN26] When 'concurrent but presumptively tribal jurisdiction' exists, a parent, the Indian child's tribe, or an Indian custodian may move to transfer the case from state court to a tribal court, and the state court must grant the motion unless (1) a parent objects, (2) the tribal court declines jurisdiction, or (3) the record shows 'good cause' not to transfer. [FN27]

FN25. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).

FN26. Miss. Band of Choctaw Indians, 490 U.S. at 36.

FN27. 25 U.S.C. § 1911(b); BIA Guideline C2(a) ('Upon receipt of a petition to transfer by a parent, Indian custodian or the Indian child's tribe, the court must transfer unless either parent objects to such transfer, the tribal court declines jurisdiction, or the court determines that good cause to the contrary exists for denying the transfer.'); Commentary to Guideline C2 (parent's objection or tribal court's declination of jurisdiction is 'an absolute veto' of any transfer).

The good-cause provision is the one in issue here. It 'is intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected.'  [FN28] Its premise is that a tribal forum is generally better than a state forum for any Indian child, but that a state court forum may be better under particular and specific circumstances. A party who seeks to overcome this premise has the burden of doing so by clear and convincing evidence;  [FN29] thus, he or she must show by clear and convincing evidence that the tribal forum is less convenient or otherwise less proper than the state forum.

FN28. Indian Child Welfare Act of 1978, Pub.L. No. 95-608, 1978 U.S .C. C.A.N. (92 Stat. 3609) 7544. This statement seems to be what Division One was referring to when it said, in In re Dependency of E.S., 92 Wn.App. 762, 770, 964 P.2d 404 (1998), that ICWA's legislative history indicates that ICWA's failure to define 'good cause' was intended 'to provide state courts with flexibility in determining the disposition of a child custody proceeding involving an Indian child.' The entire passage reads as follows:

Subsection (b) directs a State court, having jurisdiction over an Indian child custody proceeding to transfer such proceeding, absent good cause to the contrary, to the appropriate tribal court upon the petition of the parents or the Indian tribe. Either parent is given the right to veto such transfer. The subsection is intended to permit a State court to apply a modified doctrine of forum non conveniens, in appropriate cases, to insure that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are fully protected.

FN29. Dependency of E.S., 92 Wn.App. at 769; 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).

*4 One way to show good cause is to show that the motion to transfer is made so late in the proceeding that granting it would result in needless disruption. A guideline from the Bureau of Indian Affairs (BIA) provides that '{g}ood cause not to transfer 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.'  [FN30]

FN30. BIA Guideline C3(b)(i).

This guideline was applied in Dependency of E.S. [FN31] The State filed a dependency petition in 1994 and a termination petition in 1995. Although the State did not properly notify the children's tribe, trial was set for June 27, 1996. The tribe had actual notice of the proceeding no later than March 20, 1996, for on that date it moved to intervene. The tribe did not move to transfer jurisdiction until June 4, 1996, which was only 13 days before trial. The superior court denied the motion to transfer, and the tribe appealed. Because the tribe had had notice for three months before bringing its motion, yet had brought the motion only 13 days before trial, Division One affirmed the trial court's conclusion of good cause not to transfer.

FN31. Dependency of E.S., 92 Wn.App. 762.

This case is similar to Dependency of E.S. The Nation had actual notice at least by August 17, 2000, the date on which its tribal court entered an order agreeing to exercise jurisdiction. [FN32] It filed a motion to transfer on August 29, but did not bring its motion on for hearing until November 14, 2000, 13 days before the trial date that then existed. The trial court had discretion not to transfer, and it did not err by declining to do so.

FN32. This observation disposes of James' assertion that 'there was no evidence to support the finding that the Nation was given actual notice of the proceeding{.}' Br. of Appellant at 17. The tribal court's order of August 17, 2000 shows that the Nation had actual notice at least by that date.

We reject James' argument that 'there was no evidence to support the finding that the Nation was given actual notice of the proceeding{.}'  [FN33] Actual notice supplants formal notice, [FN34] and the tribal court's order dated August 17, 2000 shows beyond question that the Nation had actual notice no later than that date.

FN33. Br. of Appellant at 17.

FN34. Dependency of E.S., 92 Wn.App. at 771.

Concomitantly, we reject Blackwell's argument that her nonparental custody petition should 'be considered as if it were filed in May 1996 when the petitioner, Tamara Blackwell, was joined as a party to the {p}aternity action.'  [FN35] If Blackwell had a claim in the paternity action, it was not based on her own rights, but rather was derived from Napoleon's rights as a father under RCW 26.26. If Blackwell had a claim in the nonparental custody action, it was based on her rights (if any) under RCW 26.10. The order of August 3, 2000, was improperly presented and erroneously entered on an ex parte basis. Blackwell's nonparental custody petition was effective when filed, and not before.

FN35. CP at 382.

In summary, there was good cause not to transfer because the Nation did not present its motion to transfer until too late in the proceedings. Thus, the superior court did not err by retaining jurisdiction.

II.

James claims that the trial court applied the wrong legal standard at trial. In Mahaney v. Mahaney, [FN36] an Indian child's grandmother petitioned for nonparental custody pursuant to RCW 26.10. The trial court granted the petition, 'finding that placement to be in the best interests of the children.'  [FN37] At a post-judgment hearing, the trial court retroactively found, by clear and convincing evidence, 'that transferring custody to {the mother} would likely result in serious emotional and potentially physical damage to the children.'  [FN38]

FN36. 146 Wn.2d 878, 51 P.3d 776 (2002).

FN37. 146 Wn.2d at 884.

FN38. 146 Wn.2d at 896.

*5 On appeal to the Supreme Court, it was argued that the trial court had not applied the proper standard under ICWA and that it had improperly relied on experts who did not have the proper familiarity with Indian culture. Quoting 25 U.S.C. § 1912(e), the Supreme Court held that ICWA imposes three requirements that must be met before placing a child in foster care:

No foster care placement may be ordered in such proceeding in the absence of a determination, supported by {1} clear and convincing evidence, including {2} testimony of qualified expert witnesses, that {3} the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

 The Supreme Court also held that 'ICWA does not replace the best-interests test of RCW 26.10.100, but merely requires that the foster care finding be made by clear and convincing evidence.'  [FN39] The Supreme Court further held that the trial court had properly 'applied the clear and convincing standard of proof retroactively.'  [FN40] The Supreme Court also held that the trial court was entitled to rely on 'expert witnesses with specialized training for the medical, psychological, and special needs of the children, even though such experts lack special knowledge of and sensitivity to Indian culture.'  [FN41] The Supreme Court affirmed the trial court's placement and transferred the case 'to juvenile court for provision of services and proceedings as though the children were dependent.'  [FN42]

FN39. 146 Wn.2d at 893.

FN40. 146 Wn.2d at 896.

FN41. 146 Wn.2d at 897.

FN42. 146 Wn.2d at 898.

The trial court in this case made findings based on clear and convincing evidence. That was proper under both ICWA and Mahaney.

James argues that the trial court erred by applying a best-interests-of-the child standard. Before Mahaney, we would have agreed. After Mahaney, we find no error.

Although the trial court found 'that there is clear and convincing evidence that it would be detrimental to Trevor Napoleon's growth and development to be removed from Tamara Blackwell's care and custody{,}'  [FN43] it omitted to find that placing Trevor with James, his mother, 'is likely to result in serious emotional or physical damage to the child.'  [FN44] James argues that was error, and we agree. Blackwell responds that the error was invited by James, and thus that James may not raise it now. Blackwell does not cite, nor can we find, anywhere in the record where James told the court that ICWA did not apply. Nor can we comprehend how the court or either party could have thought that ICWA did not apply, given that the Nation had appeared and argued its motion to transfer just two weeks earlier. The trial court erred, but James did not cause the error any more than Blackwell or the court itself. [FN45] Under these circumstances, we decline to apply the doctrine of invited error.

FN43. CP at 44.

FN44. 25 U.S.C. § 1912(e).

FN45. Blackwell's trial brief set forth the Allen/Stell standard without mentioning the ICWA standard. CP at 434-443. In re Custody of Stell, 56 Wn.App. 356; In re Marriage of Allen, 28 Wn.App. 637.

Blackwell argues that if we find ICWA was not complied with, we should remand only for supplemental findings. We agree due to Mahaney, which expressly holds that a trial court may apply ICWA's 'standard of proof retroactively.'  [FN46]

FN46. 146 Wn.2d at 896.

*6 James argues that the evidence presented at trial is insufficient to support the findings that the trial court made and also the findings that it will be asked to make on remand. We hold, however, that the evidence is sufficient to meet Mahaney's standard clearly and convincingly.

James argues that the trial court erred by relying on experts who may or may not have been familiar with Indian culture. Based on Mahaney, we find no error.

We do not disturb the trial court's findings, conclusions or judgment on Napoleon's paternity petition. We do not consider or address the constitutionality of Washington's nonparental custody statute, [FN47] for that has not been raised or argued. The parties' remaining arguments lack merit or need not be reached.

FN47. See In re Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998), aff'd sub nom. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

On remand, the trial court shall determine whether evidence establishes clearly and convincingly that placing Trevor with James 'is likely to result in serious emotional or physical damage to the child.'  [FN48] If it so finds, it need not set aside its judgment; as in Mahaney, however, it shall on the request of any party, or it may on its own motion, transfer the case 'to juvenile court for provision of services and proceedings as though the children were dependent.'  [FN49] If it does not so find, it shall grant a new trial.

FN48. See 25 U.S.C. § 1912(e).

FN49. 146 Wn.2d at 898.

Remanded for further proceedings in accordance herewith.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

We concur: SEINFELD and BRIDGEWATER, JJ.