(Cite as: 192 Wis.2d 767,  532 N.W.2d 471,  1995 WL 97416 (Wis.App.))


(The decision of the Court is referenced in the North Western Reporter in a table captioned "Wisconsin Court of Appeals Table of Unpublished Opinions".)


Court of Appeals of Wisconsin.

In the Interest of Kyle S., a person under the age of 18:

KATHY M.P., Petitioner-Appellant,


STATE of Wisconsin, Respondent-Respondent.

Nos. 95-0123, 95-0124.

March 10, 1995.

GARTZKE, Presiding Judge. [FN1]

***1 Kathy M.P., mother of Kyle S. and Kabian S., born on March 29, 1986, and May 10, 1987, respectively, appeals from an order terminating her parental rights to both children. [FN2]  The first issue is whether the trial court should have postponed the TPR proceedings until notice could be given to the Indian tribe of the children or to the secretary of the department of interior.   The second issue is whether the trial court erred in its jury instructions regarding the fivesixth verdict rule.   The first issue does not involve reversible error.   We have no power to review unobjected-to error regarding the instructions.   We therefore affirm the order.

On July 7, 1994, the La Crosse County Human Services Department filed petitions to terminate the parental rights of Kathy M.P. as to the children.  A fact-finding hearing was set for September 15 and 16, 1994.

The day before the hearing, Kathy told her attorney that she is part Native American and that the children's father is as much as one-half Native American.   On the first day of the hearing, the attorney advised the trial court (1) that Kathy had indicated she is partially Winnebago, and the father of the children is onehalf Native American and as much as one-half Winnebago, and (2) that the County had not complied with the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963.   Counsel could not state whether the children are eligible for enrollment in any tribe.   The court refused to postpone the TPR proceedings on the basis of speculation that the children may be eligible to be members of a tribe.   Kathy did not testify at the hearing.   A family therapist testified that Kathy had said her mother was Native American.   The father of the children did not appear or participate.

After the jury found that the children were in continuing need of protection or services, the court set October 14, 1994, for the dispositional hearing. Before the hearing, the County notified the Wisconsin Winnebago Tribal Office and the Cherokee Nation of Oklahoma by registered mail, return receipt requested, that the TPR matter had been scheduled for hearing and it apparently provided a family chart for the children. [FN3]  The notice asked each tribe to advise the court whether it intended to intervene.

By letter dated October 12, 1994, and received by the court prior to the October 14 hearing, the Wisconsin Winnebago Nation advised the court it wished to intervene to assure that the best interests of the children were considered during any future placement/adoption, but it had no objection to the TPR proceeding taking place on October 14, 1994.   Its letter implied that the children were eligible for membership in the Wisconsin Winnebago tribe.

On October 14, 1994, the court held the dispositional hearing.   It found that Kathy was unfit as a parent and that it was in the best interests of the children to terminate her parental rights.   On October 31, 1994, the court entered an order to that effect.   Meanwhile, in a letter dated October 18, 1994, the Cherokee Nation responded that it did not find the children to be Indian children in relation to the Cherokee Nation and it would not intervene.

***2 The Indian Child Welfare Act, 25 U.S.C. § 1911 to 1963, supersedes the provisions of ch. 48, Stats., in any child custody proceedings governed by that Act. Section 48.028, Stats.

The Indian Child Welfare Act provides in relevant part:

In an 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 a return receipt requested, 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 [s]ecretary [of the interior] in like manner....

 25 U.S.C. § 1912(a).   No further proceeding shall be held until at least ten days after the receipt of the notice by the tribe or the secretary of the interior.  Id. In any State court proceeding to terminate parental rights to an Indian child, the child's tribe shall have a right to intervene.  25 U.S.C. § 1911(c).

An "Indian child" is any unmarried person who is under the age of eighteen and is either (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe.  25 U.S.C. § 1903(4).   An "Indian child's tribe" is (a) the Indian tribe in which an Indian child is a member or eligible for membership or (b), in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.  25 U.S.C. § 1903(5).

The required ten-day notice under 25 U.S.C. § 1912(a) was not given.   The question is whether that error requires automatic reversal.   We conclude that it does not.   For example, other appellate courts have remanded the matter for determination whether a child was an Indian child rather than deciding to overturn the order for termination of parental rights.  See In re Junious M., 144 Cal.App.3d 786, 193 Cal.Rptr. 40, 47 (Cal. Ct.App.1983);  In re M.C.P., 153 Vt. 275, 571 A.2d 627, 635 (Vt.1989);  In re Colnar, 52 Wash.App. 37, 757 P.2d 534, 536-37 (Wash. Ct.App.1988).

Courts have consistently held failure to provide the required notice requires remand unless the tribe has participated in the proceedings or expressly indicated they have no interest in the proceedings.  (Under such circumstances the error is often characterized as harmless.)

In re Kahlen W., 233 Cal.App.3d 1414, 285 Cal.Rptr. 507, 513 (Cal. Ct.App.1991) (citations omitted).

We infer that the only tribes that could have been involved in the case before us were the Cherokee Nation of Oklahoma and the Wisconsin Winnebago Nation. Neither chose to participate in the dispositional hearing.   For that reason, any error in not notifying a tribe before the fact-finding hearing was harmless.

In her reply brief, Kathy asserts that the notification error was not harmless for two reasons.   Her first reason is that we do not know whether the Winnebago Nation would have elected to participate in the fact-finding hearing, since it was not notified until after the hearing was completed.   But the Winnebago Nation received notice before the dispositional hearing, and had it desired to participate in the then completed fact-finding hearing, it could have said so.

***3 For her second reason, Kathy relies on other requirements for termination-of-parental-rights proceedings set forth in the Indian Child Welfare Act. She cites as an example 25 U.S.C. § 1912(d), which requires a party seeking termination of parental rights to an Indian child to satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. She also cites § 1912(f), which provides that no termination of parental rights may be ordered in the absence of a determination that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.   Neither provision bears on the question whether the notification error was harmless.

Moreover, Kathy cites 25 U.S.C. § 1912(d) and (f) not only for the first time in this appeal but for the first time in her reply brief.   We will not, as a general rule, consider contentions raised for the first time on appeal, Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980). Further, if an appellant fails to discuss an alleged error in its main brief, it may not do so in its reply brief.  In re Estate of Bilsie, 100 Wis.2d 342, 346 n. 2, 302 N.W.2d 508, 512 (Ct.App.1981).

If we nevertheless took up the new issues, fairness would require that we allow the State to respond.   That would cause us to exceed the time limitation imposed by Rule 809.107(6)(e), Stats.   The policy reasons for expeditious results in TPR cases are less important than those underlying the Indian Child Welfare Act, but they reinforce our decision to apply our well-settled standards of review, given the positions taken by the Cherokee and Wisconsin Winnebago Nations.

Nor was it necessary to notify the secretary of the department of interior.  The Indian Child Welfare Act requires notice to the secretary only if "the identity or location of the parent or Indian custodian and the tribe cannot be determined...."  25 U.S.C. § 1912(a).   Here the identity of both parents was known, and we infer that the identities of both tribes were disclosed, since notice was given to the Cherokee and Winnebago Nations.

We turn to the alleged error in the jury instructions.   The trial court gave the jury the standard five-sixth verdict instruction (Wis J I--Civil 180). Kathy contends that error occurred because the jury might have had the impression that the same jurors must answer the same way on each of the verdicts.   However, at the instructions conference the parties were furnished with copies of the proposed instructions.   Counsel for Kathy stated she had no objection to the instructions.   No claim is made that the instructions given to the jury differed from the proposed instructions furnished to the parties. Under these circumstances, we lack the power to review the unobjected-to error, except to exercise our discretionary power of reversal under § 752.35, Stats.  State v. Schumacher, 144 Wis.2d 388, 408-09, 424 N.W.2d 672, 680 (1988).   We are not asked to act under § 752.35.

***4 By the Court.--Order terminating parental rights is affirmed.


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