2023 WL 3945551
Only the Westlaw citation is currently available.
Supreme Court of Appeals of West Virginia.
STATE of West Virginia EX REL. the DELAWARE TRIBE OF INDIANS, Intervenor below, Petitioner,
The Honorable Stacy NOWICKI-ELDRIDGE, Judge of the Circuit Court of Boone County, K.A. and E.A., Intervening Foster Parents of I.R., A.S., Intervenor and Prospective Kinship Placement of I.R., M.J.-1 and M.J.-2, Proposed Intervenors and Prospective Kinship Placement of I.R., B.D., Respondent Father of I.R., and I.R., Subject Child of the Petition Below, Respondents.
Submitted: April 25, 2023
Filed: June 12, 2023
Petitioner, The Delaware Tribe of Indians (“the Tribe”), seeks a writ of prohibition precluding the Circuit Court of Boone County from enforcing its September 30, 2022, order denying the Tribe’s motion to transfer the underlying abuse and neglect proceedings to the District Court of the Delaware Tribe (“the tribal court”) pursuant to the requirements of the Indian Child Welfare Act (“ICWA” or “the Act”), 25 U.S.C. §§ 1901 to -1963 (2021). In denying the Tribe’s motion to transfer the circuit court adopted a minority doctrine known as the Existing Indian Family (“EIF”) exception to the ICWA, which posits that the Act only applies when a child is removed from his or her custodial Indian parent or from an existing “Indian family.” In the alternative, the circuit court found that if the ICWA applied, good cause existed to deny the Tribe’s motion to transfer under 25 U.S.C. section 1911(b). The Tribe challenges each of these conclusions. Upon consideration of the parties’ oral arguments and briefs, the appendix record, and applicable authorities we find that the circuit court erred in denying the motion to transfer this action to the tribal court. Accordingly, we grant the requested writ, and remand the case to the circuit court with directions to enter an order transferring this matter to the tribal court.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying abuse and neglect proceedings began in January 2020 when the West Virginia Department of Health and Human Resources (“DHHR”) filed an abuse and neglect petition alleging that I.R.’s1 mother, K.R. (“the mother”), abused drugs, was homeless, and could not provide for the then thirteen-month-old child, I.R. At the time the petition was filed the identity of I.R.’s father was unknown, but the petition alleged that he had abandoned the child. Upon the filing of the petition the circuit court ordered I.R. removed from the mother’s custody. At that time the child was placed with Respondent Foster Parents E.A. and K.A. (“foster parents”). Ultimately the mother stipulated to the allegations of abuse and neglect contained in the petition and was subsequently adjudicated as an abusing and neglectful parent. The circuit court granted the mother a post-adjudicatory improvement period.
The DHHR later moved to revoke the mother’s improvement period, noting her lack of compliance with any requirements set out in the case plan. At a hearing convened on July 1, 2020, the circuit court granted the DHHR’s motion. The court set a dispositional hearing on the mother’s rights for August 5, 2020, and at that hearing ultimately terminated her parental rights to the child.
At the July 1, 2020, hearing counsel for the unknown father moved for paternity testing of Respondent Father B.D. (“Respondent Father”), a putative father of the child. The court granted that motion, and testing confirmed that Respondent Father was the biological father of the child. In a subsequent hearing on January 4, 2021, the circuit court dismissed the unknown father from the case and appointed counsel for Respondent Father. In that order the circuit court found that there were no allegations against Respondent Father and that he was unaware of the child’s existence until the time of the paternity test; therefore, he was determined to be a “non-maltreating parent in this matter.” Accordingly, the court ordered the DHHR to begin the process of unifying Respondent Father and the child, and to begin supervised visits between the two.
The DHHR began the reunification process but was hindered by Respondent Father B.D.’s residence in the State of Minnesota, which required the DHHR to facilitate reunification via the Interstate Compact for the Placement of Children (“ICPC”). See W. Va. Code §§ 49-7-101, 102 (2018). The DHHR submitted its ICPC request to the Minnesota Department of Human Services (“Minnesota DHS”) on January 25, 2021, seeking a home study of Respondent Father’s home. It is apparent from the record that Respondent Father cancelled his initial home study with the Minnesota DHS and then failed to respond to calls, letters, or text messages from that agency until late March 2021. Finally, he sent a text message to the Minnesota DHS stating that he wished to withdraw from the ICPC process due to ongoing relationship issues and his belief that he was unable to parent I.R. alone. At that time, Respondent Father requested that the Minnesota DHS contact his sister, A.S., about caring for the child.
The DHHR was not formally notified of these developments until April 2021. However, in March 2021 A.S. contacted the DHHR to inquire about placement of the child. Thereafter a multidisciplinary team (“MDT”) meeting convened, at which A.S. was present. At the meeting the DHHR advised all parties that I.R. had been in foster care for approximately fourteen months and had bonded to her foster family. Nevertheless, the DHHR submitted an ICPC request to the Minnesota DHS in April 2021 requesting an evaluation of A.S. The DHHR also began supervised visits between A.S. and the child.
In December 2021, A.S. moved to intervene in the abuse and neglect proceedings as a possible kinship placement for I.R., and Respondent Father informed the DHHR that he was a member of the Tribe. However, when the DHHR requested verification—specifically, a copy of Respondent Father’s tribal membership card—Respondent Father indicated that the card was lost. During December 2021 the Tribe became aware of these proceedings.2
In January 2022, the DHHR filed an amended abuse and neglect petition alleging that Respondent Father abandoned the child insofar as he withdrew from the ICPC process and ceased communications with the DHHR. The parties then convened for an MDT meeting to address these allegations, as well as concerns the DHHR had with A.S.’s ICPC report.3 At the MDT meeting Respondent Father indicated that he wished to voluntarily relinquish his parental rights.
The circuit court convened a hearing on January 31, 2022, at which it granted A.S.’s motion to intervene, as well as a pending motion to intervene from the foster parents. At this hearing Respondent Father requested that the DHHR withdraw the amended abuse and neglect petition so he could complete the process of voluntarily relinquishing his parental rights. The DHHR agreed to do so, and subsequently withdrew the amended petition.
The DHHR filed a second amended petition on March 1, 2022, after Respondent Father failed to complete the voluntary relinquishment process. The second amended petition included the same allegations: that Respondent Father had abandoned the child by withdrawing from the ICPC process, by failing to visit with the child, and by failing to maintain contact with the DHHR or the child. Before a hearing could be held on this petition, Stacy Emert—a representative of the Tribe—emailed the DHHR, the guardian ad litem (“GAL”) and other parties stating that she had been unable to get in contact with the DHHR. A DHHR supervisor responded to this email and advised Ms. Emert to contact the deputy circuit clerk about participation in these proceedings. When Ms. Emert was unsuccessful in doing so, the DHHR personally notified both the deputy clerk and the circuit judge of the Tribe’s contact, and thereafter facilitated the Tribe’s participation in subsequent hearings.
The next hearing took place on March 7, 2022. The Tribe appeared by Oklahoma counsel Cynthia Burlinson, who reiterated that Respondent Father had tribal ancestry and intimated that the Tribe might seek to intervene pursuant to the ICWA. At this point Respondent Father expressed his surprise at the Tribe’s appearance in this matter and reiterated his desire to voluntarily relinquish his parental rights. The circuit court continued the matter to allow Respondent Father the opportunity to complete the voluntary relinquishment process. Before adjourning, however, the circuit court instructed the parties that anyone seeking to participate in this matter should file motions to intervene quickly and obtain local counsel if necessary.4
Once again Respondent Father did not complete the voluntary relinquishment paperwork, so the circuit court scheduled the next hearing for June 13, 2022. At that time the court instructed counsel to file briefs addressing the applicability of the ICWA to this case, and advised the parties that the issue would be addressed at a hearing on August 15, 2022. The Tribe obtained local counsel and on August 9, 2022, moved to intervene in these proceedings. Prior to filing that motion the Tribe petitioned the tribal court to take jurisdiction in this matter, and the tribal court agreed to do so, provided that the circuit court enter an order transferring the case.
At the August hearing the circuit court granted the Tribe’s motion to intervene. It then heard argument from all parties, including the Tribe, on the applicability of the ICWA. Thereafter, on September 30, 2022, the court entered an order concluding that the ICWA was inapplicable to these proceedings because, although I.R. is an “Indian child” under the Act, she was not removed from “an intact Indian family” insofar as she was not removed from Respondent Father’s custody or the home of another Indian family. In so ruling, the circuit court adopted the Existing Indian Family (“EIF”) exception to the ICWA. In the alternative, the circuit court found that, even if the ICWA applied, the proceedings were at such an advanced stage that “good cause” existed under 25 United States Code section 1911(b) to deny the Tribe’s motion to transfer. Based upon these conclusions, the circuit court entered an order on September 30, 2022, denying the Tribe’s motion to transfer this action to the tribal court. This petition for writ of prohibition immediately followed.
II. STANDARD OF REVIEW
This Court has set forth the following standard of review in determining whether a writ of prohibition shall issue:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
The Tribe presents two arguments to this Court: that the circuit court exceeded its legitimate powers in (1) adopting the EIF exception, and (2) that the circuit court erred in finding good cause existed to deny the Tribe’s motion to transfer to tribal court.5 We address each of these arguments in turn.
A. Existing Indian Family Doctrine
Preliminarily, the ICWA applies to any “child custody proceeding” involving an “Indian child.” 25 U.S.C. § 1903(1); see also id. § 1911 (explaining that Indian tribes shall have exclusive jurisdiction over child custody proceedings for children residing or domiciled within the reservation of that tribe, while State courts and tribal courts exercise concurrent jurisdiction over child custody proceedings involving children not residing or domiciled within a reservation). The ICWA defines a “child custody proceeding” to include proceedings dealing with foster care placement, termination of parental rights, pre-adoptive placement, and adoptive placement, id. § 1903(1), and defines “Indian child” to mean “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). It is undisputed that these proceedings involve not only foster and pre-adoptive placement, but also the termination of parental rights; it is equally clear that I.R. is an Indian child insofar as she is the biological child of a member of the Tribe and is eligible for membership in the Tribe. Id. Plainly, the ICWA is applicable to this case.
In arriving at a contrary conclusion, the circuit court adopted a minority doctrine, the EIF exception. This exception originated in the Supreme Court of Kansas, which explained that the ICWA is inapplicable where a child has no connection to his or her Indian parent, has not been in the custody of the Indian parent, and did not reside in a home with any other Indian family. Matter of Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982), overruled by In re A.J.S., 288 Kan. 429, 204 P.3d 543 (2009). In essence, the EIF exception permits a state court to circumvent the requirements of the ICWA if the court concludes that the Indian child is being removed from “a family with [no] significant connection to the Indian community.” Michael J., Jr. v. Michael J., Sr., 198 Ariz. 154, 7 P.3d 960, 963 (Ariz. Ct. App. 2000). The Tribe argues that the circuit court’s adoption of this exception was clearly erroneous. We agree.
From the time of its inception the EIF exception has come under intense scrutiny in various jurisdictions across the nation. Although the exception was adopted and applied in approximately twenty states in the 1980s and 1990, in recent years all but seven jurisdictions6 presented with the exception have either repudiated it—including the very court that created it7—or rejected it in the first instance.8 While the reasoning of the courts rejecting the EIF exception varies, we find especially persuasive the explanation of the Court of Appeals of Virginia as to why the EIF exception must be rejected. In Thompson v. Fairfax County Department of Family Services, 62 Va.App. 350, 747 S.E.2d 838 (2013), that court explained:
Thompson, 747 S.E.2d at 847. We agree with this reasoning; the EIF exception is plainly incompatible with the explicit provisions of the Act and contrary to Congress’s stated intent in passing the Act, namely the protection of Indian tribes and their resources, including their children. See 25 U.S.C. § 1901.
We decline to recognize the [EIF] Exception for a number of reasons. First, the plain text of the statute does not recognize the application of this exception. There is no threshold requirement in the Act that the child must have been born into or must be living with an existing Indian family, or that the child must have some particular type of relationship with the tribe or his or her Indian heritage. “Because Congress has clearly delineated the nature of the relationship between an Indian child and tribe necessary to trigger application of the Act, judicial insertion of an additional criterion for applicability is plainly beyond the intent of Congress and must be rejected.” In re Baby Boy C., 27 A.D.3d 34, 805 N.Y.S.2d 313, 323 (N.Y. App. Div. 2005) (citations omitted).
Second, cases recognizing the exception ignore Congress’s intent “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” 25 U.S.C. § 1902 (emphasis added). As the Supreme Court recognized in [Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 [109 S.Ct. 1597, 104 L.Ed.2d 29] (1989)], “Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians.” 490 U.S. at 49 [109 S.Ct. 1597] [ ]. The [EIF] Exception takes an unnecessarily restrictive approach to ICWA, one that would frustrate Congress’s intent to protect tribal interests.
Finally, in its findings, Congress stated “that the States ... have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” 25 U.S.C. § 1901(5). The [EIF] Exception requires courts to assess the “Indianness” of a particular Indian child, parent, or family, a subjective determination that courts “ ‘are ill-equipped to make.’ ” Baby Boy C., 27 A.D.3d at 49, 805 N.Y.S.2d at 324 (quoting In re Alicia S., 65 Cal.App.4th 79, 76 Cal.Rptr.2d 121, 128 (1998)). “Since ICWA was passed, in part, to curtail state authorities from making child custody determinations based on misconceptions of Indian family life, the [EIF] exception, which necessitates such an inquiry, clearly frustrates this purpose.” Id. (citations omitted).
Our decision in this regard is further supported by guidance from the Bureau of Indian Affairs (“BIA”) set forth in its 2016 BIA Guidelines pertaining to application of the Act’s provisions. Guidelines for Implementing the Indian Child Welfare Act (“2016 Guidelines”), 25 C.F.R. §§ 23.1 to -23.144 (2016). The 2016 Guidelines state, in relevant part:
In determining whether ICWA applies to a proceeding, the State court may not consider factors such as the participation of the parents or the Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian child and his or her parents, whether the parent ever had custody of the child, or the Indian child’s blood quantum.
Id. § 23.103(c). This unequivocal statement plainly dispels any notion that the EIF exception is compatible with the ICWA. Accordingly, we join the “swelling chorus of [jurisdictions] affirmatively reject[ing] the EIF exception[,]” ICWA Proc., 81 Fed. Reg. 38778, 38802 (June 14, 2016), and hold that West Virginia does not recognize the Existing Indian Family exception to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to -1963 (2021). Accordingly, the circuit court erred in adopting the EIF exception and subsequently relying on that exception to determine that the ICWA was inapplicable to this case.
B. Good Cause to Deny the Motion to Transfer to Tribal Court
Despite its conclusion that the ICWA did not apply to the instant matter, the circuit court proceeded to determine, in the alternative, that good cause existed to deny the Tribe’s motion to transfer this case to tribal court because the underlying proceedings were at an “advanced stage.” The circuit court explained that this case had been pending for more than three years at the time the Tribe made its motion to transfer, and thus it would be disingenuous to argue that the proceedings were not at an advanced stage. As it did below, the Tribe argues before this Court that the proceedings are not at an advanced stage insofar as Respondent Father has not even been adjudicated as an abusing or neglectful parent. After a thorough review of the relevant authorities, we agree with the Tribe that the circuit court erred in concluding that good cause existed to deny the Tribe’s motion to transfer.
The Tribe’s motion to transfer this matter to the tribal court was made pursuant to 25 United States Code section 1911(b), which provides:
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, 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.
Succinctly put, this provision requires a state court to transfer a child custody proceeding to tribal court unless: (1) a parent objects to the transfer; (2) the tribal court declines to accept the transfer; or (3) “good cause” exists to deny the transfer. See id. The first exception is inapplicable insofar as Respondent Father supports the Tribe’s motion, and I.R.’s mother’s parental rights were terminated well before the motion to transfer was made. The second exception is likewise inapplicable because the tribal court has accepted jurisdiction of this case contingent upon the circuit court’s entry of an order transferring the matter. The circuit court relied solely upon the third exception—that there was “good cause” to deny transfer—in denying the Tribe’s motion.
The ICWA does not define “good cause,” but the Code of Federal Regulations explicitly provides what cannot be considered in making a good cause determination. Specifically, 25 Code of Federal Regulations section 23.118(c) provides:
In determining whether good cause exists, the court must not consider:
(1) Whether the foster-care or termination-of-parental rights proceeding is at an advanced stage if the Indian child’s parent, Indian custodian, or Tribe did not receive notice of the child-custody proceeding until an advanced stage;
(2) Whether there have been prior proceedings involving the child for which no petition to transfer was filed;
(3) Whether transfer could affect the placement of the child;
(4) The Indian child’s cultural connections with the Tribe or its reservation; or
(5) Socioeconomic conditions or any negative perception of Tribal or BIA social services or judicial systems.
(Emphasis added.) In finding that subsection (c)(1) did not prohibit the circuit court from considering the “advanced stage” of this proceeding, the court relied upon a now-defunct provision in the 1979 BIA Guidelines, which enumerated a list of situations that did constitute “good cause” to prevent transfer. Guidelines for State Cts.; Indian Child Custody Proc. (“1979 Guidelines”), 44 Fed. Reg. 67584 (Nov. 26, 1979). That list indicated that good cause to deny transfer existed where “[t]he proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the motion to transfer promptly after receiving notice of the hearing.” Id. at 67591. In essence, this language provides that a state court may deny a motion to transfer where the moving party could have moved to transfer but delayed doing so, thus effectively sitting on its right to change venue. See id. Before this Court several of the parties cited this guidance as a basis for arguing that the Tribe is not entitled to transfer because it knew of these proceedings in December 2021 but did not move to transfer until eight months later in August 2022. What the circuit court and the parties fail to recognize is that the 1979 Guidelines were explicitly abrogated and replaced by the BIA when it promulgated the 2016 Guidelines. See Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96476 (Dec. 30, 2016) (“The  guidelines replace the 1979 and 2015 versions[.]”). Therefore, we do not find the 1979 Guidelines persuasive, nor do we rely upon any guidance contained therein.
In discussing its decision to abrogate the 1979 Guidelines the BIA provided a detailed explanation as to why it specifically displaced the provision upon which respondents rely. ICWA Proc., 81 Fed. Reg. at 38823. First, the BIA explained that motions to transfer to tribal court are to be treated as a “modified doctrine of forum non conveniens,” or a motion to change venue pursuant to 28 United States Code section 1404 (2021), which may be granted at any time during the pendency of the proceedings. Id. (“The mere passage of time is not alone a sufficient reason to deny a motion to transfer pursuant to 28 U.S.C. § 1404; nor is it for 25 U.S.C. § 1911(b).”); see also Matter of Appeal in Pima Cnty. Juv. Action No. S-903, 130 Ariz. 202, 635 P.2d 187, 191 (Ariz. Ct. App. 1981) (“[25 U.S.C. § 1911(b)] was intended to permit a state court to apply a modified doctrine of forum non conveniens.”). Second, the BIA noted that the parents or the Tribe may have legitimate interests in delaying their motion to transfer the case to tribal court. ICWA Proc., 81 Fed. Reg. at 38823. For example, the BIA notes that the Tribe or parents may have no reason to transfer the case during the “foster care” phase, where the child has been only temporarily removed from the home with a goal of reunification with the parents, because the expectation is the child will be returned to his or her parents. Id. (citing In re Interest of Zylena R., 284 Neb. 834, 825 N.W.2d 173 (2012)). However, once the State signals it intends to terminate parental rights, the Tribe and parents have a legitimate interest in having the matter decided by a tribal court. Id. Said the BIA:
The Tribe or parent rationally decides that seeking transfer of a foster-care proceeding would not support the goal of reunification of the Indian child with her parent(s). But once the State abandons this goal, and seeks to terminate parental rights, the Tribe’s or parent’s calculus might reasonably change. If time limits were imposed by moving to transfer, Tribes might be forced to seek transfer early in a foster-care proceeding, even if that outcome does not facilitate reunification. The [BIA] believes that this would undermine the goals and intent of ICWA, and not produce the best outcomes for Indian children.
For these reasons, the final rule provides that a request for transfer may be made at any stage within each proceeding.
Id. (Emphasis added.)
It is critical to note that the ICWA divides cases into different phases, designated as proceedings (e.g., the “foster care” phase where reunification is the goal, and the “termination” phase where a parent’s rights will be terminated and the child placed in an adoptive home). See 25 C.F.R. § 23.118 (separating “foster-care proceedings” from “termination-of-parental-rights proceedings” for purposes of determining whether an individual proceeding is at an advanced stage). Thus, while the overarching length of a single abuse and neglect case may span many months, or even several years, the pertinent question is how advanced the current “proceeding” is within the case. ICWA Proc., 81 Fed. Reg. at 38825 (“The final rule also clarifies that ‘advanced stage’ refers to the proceeding, rather than the case as a whole. Each individual proceeding will culminate in an order, so ‘advanced stage’ is a measurement of the stage within each proceeding.”). This means that the circuit court should not have based its decision on the fact that the case had been ongoing since January 2020—a span of nearly three-and-a-half years. Instead, the circuit court should have only considered whether the current phase, or proceeding, was at an advanced stage.
In our review of the appendix record this case has involved at least three individual “proceedings” as contemplated by the ICWA: (1) termination of the mother’s parental rights; (2) foster care during attempted unification with Respondent Father; and (3) termination of Respondent Father’s parental rights. The first proceeding began in January 2020 when I.R. was removed from her mother’s custody and the DHHR sought termination of the mother’s parental rights; that proceeding concluded in August 2020 when the mother’s rights were terminated. The next proceeding encompassed the DHHR’s myriad efforts to unify I.R. with Respondent Father or to place her with other relatives, such as A.S. That proceeding spanned approximately one year and ended in January 2022 when the DHHR filed an amended abuse and neglect petition alleging that Respondent Father had abandoned the child. The next “proceeding,” i.e., termination of Respondent Father’s parental rights, began with the filing of DHHR’s second amended petition in March 2022.
The proceeding regarding termination of the parental rights of Respondent Father was not at all advanced at the time the Tribe filed its motion to transfer the proceeding. Respondent Father had not been adjudicated; indeed, neither a preliminary nor adjudicatory hearing had even been scheduled. While five months passed between March 2022 and the Tribe’s motion to transfer in August 2022, the record reveals that those months were devoted to ascertaining whether the ICWA applied to this case, and not to any consideration of the merits of the amended petition. In short, there was nothing “advanced” about this proceeding when the Tribe moved to transfer. Accordingly, we conclude that the circuit court clearly erred in determining that good cause existed to deny transfer of this matter to the tribal court. See Syl. Pt. 4, in part, Berger, 199 W. Va. at 14-15, 483 S.E.2d at 14-15 (explaining that a writ of prohibition may issue where the lower tribunal’s order is clearly erroneous as a matter of law).
For the reasons stated herein, we grant the Tribe’s petition for writ of prohibition and prohibit enforcement of the circuit court’s September 30, 2022, Order Denying Transfer. We remand this matter to the circuit court with directions to enter an order transferring jurisdiction in this action to the District Court of the Delaware Tribe.
JUSTICE ARMSTEAD dissents and reserves the right to file a separate opinion.
Armstead, Justice, dissenting:
This matter involves the question of whether the Indian Child Welfare Act, (“ICWA”), requires that proceedings regarding the placement of I.R. to be transferred to the District Court of the Delaware Tribe, (“tribal court”). In this case, I believe that the majority has mistakenly concluded that the circuit court erred in denying the Tribe’s motion to transfer this action to the tribal court because of undue delay.1
The facts of this case highlight the complexities of the ICWA. It is undisputed that the circuit court was authorized to deny the Tribe’s motion to transfer this case to tribal court if it appropriately found that good cause existed to deny the transfer. See 25 United States Code section 1911(b). The circuit court found that good cause existed “due to the advanced stages of this proceeding,” and “the delay in the Delaware Tribe of Indians filing their motion to intervene and request for transfer of jurisdiction upon notice of the proceedings.” The majority finds that circuit court erroneously relied upon the since-abrogated 1979 BIA Guidelines which, listed “advanced stage” and failure to file a “motion to transfer promptly after receiving notice of the hearing” as situations constituting “good cause” to deny a motion to transfer. Although the 1979 Guidelines were abrogated and replaced by the 2016 Guidelines, I believe that under the 2016 Guidelines, the Tribe’s delay in seeking transfer to the tribal court was still properly considered by and relied upon by the circuit court.
The majority correctly identifies that the term “good cause” is not defined in the ICWA. The majority also recognizes, however, that 25 C.F.R. § 23.118 provides a list of factors that may not be considered in making a good cause determination. Specifically, 25 C.F.R. § 23.118(c)(1) prohibits courts from considering:
Whether the foster-care or termination-of-parental rights proceeding is at an advanced stage if the Indian child’s parent, Indian custodian, or Tribe did not receive notice of the child-custody proceeding until an advanced stage[.] (emphasis added).
The majority found that the circuit court erred in finding good cause to deny the motion to transfer to the tribal court because it relied on the 1979 Guidelines instead of the 2016 Guidelines. However, a closer look at 25 C.F.R. § 23.118(c)(1) reveals that such rule is inapplicable here because the Tribe received notice of the proceeding prior to “an advanced stage.”
The majority, relying on the 2016 Guidelines to 25 C.F.R. § 23.118(c)(1), states:
Each individual proceeding will culminate in an order, so ‘advanced stage’ is a measurement of the stage within each proceeding.”). This means that the circuit court should not have based its decision on the fact that the case had been ongoing since January 2020—a span of nearly three-and-a-half years. Instead, the circuit court should have only considered whether the current phase, or proceeding, was at an advanced stage.
The majority determines that the current phase or proceeding, which it identifies as the “termination of Respondent Father’s parental rights” stage, began with the filing of the DHHR’s second amended petition in March 2022. It proceeds to find that this current proceeding is not at an advanced stage.
If the majority is correct that (1) this matter involves three separate stages or proceedings, (2) the relevant proceeding before us began in March 2022 with the filing of the amended petition, and (3) such proceeding is not at an “advanced stage”, then clearly the prohibition set forth in 25 C.F.R. § 23.118(c)(1), on which the majority relies, does not come into play. Such prohibition on the circuit court’s consideration of whether the proceeding is at an advanced stage only applies “if the Indian child’s parent, Indian custodian, or Tribe did not receive notice of the child-custody proceeding until an advanced stage.” (Emphasis added). Such is clearly not the case here.
As the majority expressly concludes, the Tribe became aware of the pendency of this case in December of 2021. Therefore, the Tribe become aware, not during an “advanced stage” of the present stage or proceeding, but in fact three months prior to the commencement of the current proceeding which began upon the filing of the March 2022 amended petition. Therefore, because the notice to the Tribe was not at an untimely “advanced stage,” as outlined in 25 C.F.R. § 23.118(c)(1), such provision is inapplicable and the circuit court was not precluded by such provision from considering whether the proceeding was at an advanced stage when it determined that good cause existed to deny the Tribe’s motion to transfer.
The majority further finds that, regardless, the current “proceeding” was not at an advanced stage such as to justify the circuit court’s finding of good cause to deny the motion to transfer. It relies heavily upon the fact that the Respondent Father had not yet been adjudicated when the Tribe filed its motion. However, I do not believe that the failure to have yet adjudicated the Respondent Father, who had repeatedly expressed his desire to voluntarily relinquish his parental rights, is determinative on the issue of whether the proceeding was at an advanced stage or whether the Tribe unduly delayed filing its motion for transfer of the action.
One need only review the long litany of events that took place between the date the Tribe learned of the proceedings and of the date it filed its motion to transfer in order to determine that its delay was unwarranted. After the Tribe became aware of the pendency of this case, and prior to the Tribe filing its motion to transfer, the following events occurred:
(1) the DHHR filed an amended petition alleging that the Respondent Father abandoned I.R.;
(2) an MDT meeting was held to address the allegations as well as concerns with A.S.’s ICPC report, and during that meeting, the Respondent Father indicated that he wished to voluntarily relinquish his parental rights;
(3) a hearing was held on January 31, 2022, in which two separate motions to intervene were granted;
(4) the Respondent Father failed to complete the voluntary relinquishment process;
(5) a second amended petition was filed on March 1, 2022, after the Respondent Father failed to complete the voluntary relinquishment process;
(6) a hearing was held on March 7, 2022, and the Tribe appeared and according to the majority, “intimated that [it] might seek to intervene pursuant to the ICWA.” During this hearing, the Respondent father again indicated his desire to voluntarily relinquish his parental rights. Importantly, the Tribe was instructed to file a motion to intervene quickly if it desired to intervene in the proceedings;
(7) a cousin of the Respondent Father and his wife filed a motion to intervene;
(8) a DHHR status review summary was filed on June 10, 2022, indicating that the DHHR was still pursuing abandonment on behalf of the Respondent Father;
(9) the cousin of the Respondent Father and his wife filed a brief in support of their motion to intervene and for placement;
(10) a prior intervenor, A.S., filed a motion to join the motion to intervene filed on behalf of the Father’s cousin and his wife;
(11) the GAL filed a brief regarding the applicability of the ICWA;
(12) the Respondent Father filed a brief in support of his cousin’s motion to intervene;
(13) the foster parents filed a brief regarding the applicability of the ICWA; and,
(14) a DHHR Adjudicatory Summary was filed.
At the time the Tribe filed its motion to transfer to tribal court, it was aware that a hearing had been held on March 7, 2022, because it participated in the hearing. It was also on notice of the following: (1) the DHHR sought to terminate the parental rights of the Respondent Father; (2) a mediation had previously occurred; (3) the Respondent Father indicated his desire to voluntarily relinquish his parental rights and understood that if the relinquishment proceeded, he would no longer have a voice in the placement of I.R.; (4) the circuit court continued the matter to allow the Respondent Father to complete the voluntary relinquishment process; and, (5) the circuit court had instructed anyone seeking to participate in the matter to file a motion to intervene expeditiously.
Nonetheless, approximately eight months after it learned of the proceedings, and over five months after it participated in the March 7, 2022 hearing, the Tribe filed: (1) a motion to intervene; (2) a motion to invalidate all of the previously conducted proceedings dating back to when the court had reasonable cause to believe that I.R. was an Indian child; and (3) a motion to transfer to tribal court. By that time, I believe that the proceeding had reached an advanced stage. The Tribe’s delay simply cannot be justified. Indeed, “we have noted the harm that can accompany delays in abuse and neglect matters, finding that ‘[c]hild abuse and neglect cases must be recognized as being among the highest priority for the courts’ attention. Unjustified procedural delays wreak havoc on a child’s development, stability and security.’ ” In re S.L., 243 W.Va. 559, 566, 848 S.E.2d 634, 641 (2020) (quoting In the Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365 (1991)).
For these reasons, I believe the circuit court properly denied the Tribe’s motion to transfer to the tribal court, and I respectfully dissent as to the majority’s decision to grant the Tribe’s petition for a writ of prohibition.
--- S.E.2d ----, 2023 WL 3945551
Consistent with our practice in cases involving sensitive facts, we use initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015).
The appendix record is largely devoid of any information regarding the period from April 2021 to December 2021, but the parties agree that efforts were underway to place I.R. with either A.S. or the proposed-intervenor cousins, M.J.-1 and M.J.-2. No hearings were held before the circuit court during that time.
Further, the record does not indicate how the Tribe came to be notified of these proceedings in December 2021, but it is undisputed that such notification did not come from the DHHR. Despite this, we have no trouble concluding that the Tribe had actual notice of the proceedings from December 2021 onward. See In re N.R., 242 W. Va. 581, 590, 836 S.E.2d 799, 808 (2019) (explaining that actual notice constitutes substantial compliance with the notice requirements of the ICWA at 25 U.S.C. § 1912(a)).
The Minnesota DHS approved A.S. as a “relative-unlicensed caregiver” but the report failed to include a background check on A.S.’s husband. The DHHR found this troubling, given A.S.’s prior disclosure that her husband had a criminal history, and because the DHHR had been made aware of a domestic incident during the proceedings which resulted in the issuance of a protective order against the husband. Despite this, A.S. indicated that her husband would be returning to the home to continue planned home renovations.
In this regard, the Tribe argues that the circuit court erred in requiring it to obtain local counsel. We need not address this argument as the Tribe does not indicate how, if at all, it was prejudiced by this requirement. That said, we note that the Bureau of Indian Affairs has declined to require that tribes be permitted to appear without local counsel, but has stated that the agency “agrees with the practice adopted by the State courts that permit Tribal representatives to present before the court in ICWA proceedings regardless of whether they are attorneys or attorneys licensed in that State.” Indian Child Welfare Act Proc. (“ICWA Proc.”), 81 Fed. Reg. 38778, 38799 (June 14, 2016). This Court has previously permitted a non-attorney Tribal representative to participate in child custody proceedings governed by the ICWA. See N.R., 242 W. Va. 581, 836 S.E.2d 799.
The Tribe also argued that the circuit court erred in concluding, in passing, that applying the ICWA to this matter would constitute racially motivated discrimination, as any decision would be based on the Indian heritage of I.R. Because we conclude that the circuit court should have transferred this matter to the tribal court, we find it unnecessary to address this argument; however, we note that the Supreme Court of the United States has plainly stated that “federal legislation with respect to Indian tribes, although relating to Indians as such, is not based upon impermissible racial classifications. Quite the contrary, classifications expressly singling out Indian tribes as subjects of legislation are expressly provided for in the Constitution and supported by the ensuing history of the Federal Government’s relations with Indians.” United States v. Antelope, 430 U.S. 641, 645, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977) (footnote omitted).
These jurisdictions include only six states (Alabama, Indiana, Kentucky, Missouri, Nevada, and Tennessee) and a single appellate district in California. See, e.g., S.A. v. E.J.P., 571 So. 2d 1187 (Ala. Civ. App. 1990); In re Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988); Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996); C.E.H. v. L.M.W., 837 S.W.2d 947 (Mo. Ct. App. 1992); In re N.J., 125 Nev. 835, 221 P.3d 1255 (2009); In re Morgan, No. 02A01-9608-CH-00206, 1997 WL 716880 (Tenn. Ct. App. Nov. 19, 1997); In re Alexandria Y., 45 Cal.App.4th 1483, 53 Cal. Rptr. 2d 679 (1996).
Kansas laid the EIF doctrine to rest in 2009. In re A.J.S., 204 P.3d at 551 (“[W]e hereby overrule Baby Boy L. ... and abandon its existing Indian family doctrine.”).
See, e.g., In re Adoption of T.N.F., 781 P.2d 973, 977 (Alaska 1989); Michael J., Jr. 7 P.3d at 963-64; In re N.B., 199 P.3d 16, 20-22 (Colo. App. 2007); Indian Tribe v. Doe (In re Baby Boy Doe), 123 Idaho 464, 849 P.2d 925, 927 (1993); Tubridy v. Ironbear (In re Adoption of S.S.), 252 Ill.App.3d 33, 190 Ill.Dec. 802, 622 N.E.2d 832, 838-39 (1993), rev’d on other grounds, 167 Ill.2d 250, 212 Ill.Dec. 590, 657 N.E.2d 935 (1995); Dep’t of Soc. Servs. v. Boyd (In re Elliott), 218 Mich.App. 196, 554 N.W.2d 32, 35-36 (1996); In re Adoption of Quinn, 117 Or.App. 579, 845 P.2d 206, 209 n. 2 (1993), rev’d on other grounds, 320 Or. 233, 881 P.2d 795 (1994); Adoptive Couple v. Baby Girl, 398 S.C. 625, 731 S.E.2d 550, 558 n. 17 (2012), rev’d on other grounds, 570 U.S. 637, 133 S.Ct. 2552, 186 L.Ed.2d 729 (2013); In re Adoption of Baade, 462 N.W.2d 485, 489-90 (S.D. 1990); D.J.C. v. P.D.C. (State ex rel. interest of D.A.C.), 933 P.2d 993, 999-1000 (Utah Ct. App. 1997).
The circuit court alternatively determined that the Tribe’s motion to transfer this matter to the tribal court should be denied pursuant to the Existing Indian Family Doctrine. The majority concludes the circuit court erred in relying on this doctrine and holds that the West Virginia does not follow the Existing Indian Family Doctrine. Because I believe that the circuit court correctly denied the Tribe’s motion due to undue delay and the advance stage of the proceedings, I do not believe it was necessary for the Court to determine the applicability of the Existing Indian Family Doctrine.