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(Cite
as: 22 Kan.App.2d 941, 925 P.2d 447)
Court
of Appeals of Kansas.
In
the Interest of C.Y., d/o/b 06/03/92.
No.
74815.
Oct.
18, 1996.
Court
of Appeals has duty to question jurisdiction on its own
motion.
While
ICWA gives Indian tribe the right to intervene in state
court proceeding for termination of parental rights to Indian child,
it is tribal court, and not tribe, which may decline
to exercise jurisdiction over case transferred to it under subsection
providing for such transfer upon petition of either parent absent
objection by other parent. Indian Child Welfare Act of 1978,
§§ 2,
4(8, 12), 101(b, c), 25 U.S.C.A. §§ 1901,
1903(8, 12), 1911(b, c).
Under
ICWA, "Indian tribe" and "tribal court" are separately defined and
denote separate entities. Indian Child Welfare Act of 1978, § 4(8,
12), 25 U.S.C.A. § 1903(8,
12).
District
court failed to comply with ICWA in terminating parental rights
to Indian child where mother, a member of Fort Peck
Tribe of the Sioux Nation, requested transfer to tribal court,
father did not object, counsel for tribe stated that tribe
would resist transfer, tribal court did not decline jurisdiction, and
district court made no finding that good cause existed not
to transfer. Indian Child Welfare Act of 1978, § 101(b,
c), 25 U.S.C.A. § 1911(b,
c).
In
order to comply with ICWA in termination of parental rights
case, trial court must obtain declination of jurisdiction from tribal
court or make finding that good cause exists not to
transfer case to tribal court before proceeding to exercise jurisdiction.
Indian Child Welfare Act of 1978, § 101(b),
25 U.S.C.A. § 1911(b).
**448
*941
Syllabus by the Court
1. This court has a duty to question jurisdiction on
our own motion.
2. Provisions of the Indian Child Welfare Act are construed
and applied.
3. Under the Indian Child Welfare Act, "Indian tribe" and
"tribal court" are separately defined and denote separate entities.
4. Under the Indian Child Welfare Act, a tribe has
the right to intervene in a state court proceeding involving
termination of parental rights, while the tribal court must decline
jurisdiction in order for the state court to proceed.
5. In order to comply with the Indian Child Welfare
Act in a termination of parental rights case, the trial
court must obtain a declination of jurisdiction from the tribal
court or make a finding that good cause exists not
to transfer the case to the tribal court before proceeding
to exercise jurisdiction over the case.
Carl S. Black, Fairway, for appellant.
Victoria S. Meyer, Assistant District Attorney, Nick A. Tomasic, District
Attorney, and Carla J. Stovall, Attorney General, for appellee.
Before ELLIOTT, P.J., KNUDSON, J., and RICHARD M. SMITH, District
Judge, Assigned.
ELLIOTT, Presiding Judge:
The birth parents of C.Y. appeal the termination of their
parental rights. We reverse and remand.
The petition alleging C.Y. was a child in need of
care stated that C.Y. had been placed in protective custody
at mother's request partly because mother's mental condition and alcoholism
prevented her from properly caring for C.Y. and that mother
had previously been convicted of sexually abusing her other children
who *942
were now in the custody of the Sioux Nation (of
which mother is a member).
The initial termination hearing was continued because notice to the
Fort Peck Tribe of the Sioux Nation did not comply
with the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901
et
seq.
(1994). Mother requested that the case be transferred to the
tribal court and father did not object.
A lawyer in private practice in North Dakota entered his
appearance on behalf of the tribe and filed a document
stating that economic conditions prevented the
tribe from appearing at the termination hearing, that the tribe
retained its right to intervene, and that the tribe "will
object to any Motion to Transfer Jurisdiction in this matter
to the Fort Peck Tribal Court."
The trial court accepted the document as formal declination of
jurisdiction and terminated both parents' rights. Father has adopted mother's
brief as his own.
We have a duty to question jurisdiction
on our own motion. In
re Marriage of Marks,
13 Kan.App.2d 1, 2, 758 P.2d 257 (1988).
All parties agree the ICWA applies to this case. The
ICWA, 25 U.S.C. § 1911
(1994), includes the following relevant provisions:
"(b)
Transfer of proceedings; declination by tribal
court.
In
any State court proceeding for the foster care placement of,
or termination of **449
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.
"(c)
State court proceedings; intervention.
In
any State court proceeding for the foster care placement of,
or termination
of parental rights to, an Indian child, the Indian custodian
of the child and the Indian child's tribe
shall have a right to intervene at any point in
the proceeding." (Emphasis added.)
To
us, the statute is clear. It is the tribe
which has the right to intervene under 25 U.S.C. § 1911(c),
and it is the tribal court
which must decline to exercise jurisdiction over a case transferred to
it under § 1911(b). "Indian tribe" and "tribal
court" are separately *943
defined and denote separate entities. See 25 U.S.C. §§ 1903(8)
and (12) (1994).
Here, the Fort Peck Tribal Court has never declined jurisdiction.
Counsel for the tribe
merely stated the tribe
would resist the transfer.
Curiously, the trial court did
not need a formal declination of jurisdiction from the tribal court if
it found that good cause existed not to transfer the case on mother's
request and there was no objection to the transfer from father. The
trial court made no such finding and, arguably at least, the trial court
may have inferentially found it did not have good cause to retain jurisdiction
since it did find it needed a formal declination of jurisdiction before
it could proceed with the case.
As a result, we hold the trial
court failed to comply with the ICWA in determining whether to transfer
the case to the tribal court. In order to comply with the
ICWA, the trial court must obtain a declination of jurisdiction from
the tribal court
or make a finding that good cause exists not to transfer the case to the
tribal court. 25 U.S.C. § 1911(b).
We do not feel we are being overly technical in
our holding. As we read the ICWA, its clear language
requires this result.
Reversed and remanded with instructions that the trial court comply
with 25 U.S.C. § 1911(b).
22 Kan.App.2d 941, 925 P.2d 447
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