as: 899 P.2d 223)
Court of Appeals,
PEOPLE of the State of Colorado,
the Interest of A.T.W.S., a Child,
the Petition of the Denver Department of Social Services, Petitioner-
Concerning Robert Moore and Elizabeth Moore, Intervenors-Appellees,
Lake Band of the Minnesota Chippewa (Ojibwe) Tribe, Intervenor-Appellant,
Concerning Teri Lynn Wakanabo f/k/a Teri Lynn Smith, Thomas William
John Doe, and All others claiming an interest in said
Oct. 6, 1994.
Denied Dec. 22, 1994.
Denied Aug. 14, 1995.
Child Welfare Act (ICWA) is based on presumption that protection of Indian
child's relationship to tribe is in child's best interest. Indian
Child Welfare Act of 1978, §§ 2-403, 25 U.S.C.A. §§ 1901-1963.
is general presumption of jurisdiction favoring tribal court for proceedings
concerning Indian child who is domiciled off reservation. Indian
Child Welfare Act of 1978, §§ 2-403, 25 U.S.C.A. §§ 1901-1963.
order to determine whether there is good cause not to transfer proceeding
involving Indian child to tribal court, court must exercise discretion
in examining both case facts and Bureau of Indian Affairs (BIA) guidelines.
of establishing good cause to deny transfer of case involving Indian child
to tribal court is upon party opposed to transfer. Indian Child
Welfare Act of 1978, §§ 2-403, 25 U.S.C.A. §§ 1901-1963.
of good cause to deny transfer of case involving Indian child to tribal
court is within discretion of juvenile court, examining all circumstances
in case-by-case determination. Indian Child Welfare Act of 1978,
§§ 2-403, 25 U.S.C.A. §§ 1901-1963.
of trial court's decision not to transfer case involving Indian child
to tribal court is limited to determination of whether substantial evidence
supports that court's findings. Indian Child Welfare Act of 1978,
§§ 2-403, 25 U.S.C.A. §§ 1901-1963.
court did not abuse its discretion in denying transfer of dependency and
neglect case involving Indian child to tribal court; proceedings
were at advanced stage and tribe's motion, filed over three years after
tribe received notice of dependency and neglect petition, was untimely.
Indian Child Welfare Act of 1978, §§ 2-403, 25 U.S.C.A.
interests of child should not be factor in court's determination of whether
to grant tribe's motion to transfer jurisdiction in dependency and neglect
proceeding to tribal court. Indian Child Welfare Act of 1978, §§ 2-403,
25 U.S.C.A. §§ 1901-1963.
error by trial court in allowing introduction of evidence regarding best
interest of Indian child at hearing on tribe's motion to transfer jurisdiction
dependency and neglect proceeding to tribal court was harmless; trial
court's ruling was based on other factors such as timeliness of tribe's
motion for transfer. Indian Child Welfare Act of 1978, §§ 2-403,
25 U.S.C.A. §§ 1901-1963.
Pamela A. Gordon, guardian ad litem.
Daniel E. Muse, City Atty., Office
of City Atty., Leah L. Audin, Asst. City Atty., Denver, for petitioner-appellee
Denver Dept. of Social Services.
Allen B. Alderman, Denver, for
Whiteing & Thompson, Sandra
Hansen, Boulder, for intervenor-appellant.
M. Kathryn Bradley, Denver, for
Opinion by Judge PLANK.
In this dependency and neglect
proceeding concerning A.S., a Native American child, the Leech Lake Band
of Minnesota Chippewa Tribe (Tribe) appeals an order of the juvenile court
which denied transfer of jurisdiction to a tribal court under the Indian
Child Welfare Act (ICWA), 25 U.S.C. § 1901, et seq. (1988).
On May 3, 1988, the Denver Department
of Social Services (DDSS) filed a dependency and neglect petition concerning
A.S., then about 15 months old, against
T.L.W. (mother). Because the mother was a member of the Tribe, DDSS
notified the Tribe of the proceedings pursuant to the ICWA.
In June 1988, the Tribe replied
that it did not have a tribal court facility and therefore did not request
a transfer of jurisdiction. There were no other communications
between the Tribe and the DDSS concerning transfer until January 1992.
Meanwhile, A.S. was placed in the temporary custody of his
paternal aunt, who soon after returned the child to the custody of the
In November 1988, the juvenile
court adjudicated A.S. to be dependent and neglected. In December,
after a review hearing, A.S. was placed in the care of a foster family
where he has remained. In addition, a treatment plan was designed
to address the parental unfitness and alcohol dependency of the mother.
In October 1989, the juvenile
court scheduled a permanency planning hearing for March 29, 1990. However,
because of a variety of circumstances, this hearing did not occur. Then,
on January 31, 1992, the Tribe entered its appearance for the first time
and filed a motion to transfer jurisdiction to the tribal court of the
Mille Lac Band of the Minnesota Chippewa Tribe. The Mille
Lac Band agreed to allow the Tribe to try the case in Mille Lac Band tribal
Subsequently, both the permanency
planning hearing and motion to transfer hearing were rescheduled for June
12, 1992. At this hearing, the juvenile court
found that "good cause to the contrary" existed to retain jurisdiction
in Colorado and denied the Tribe's motion to transfer.
Transfer of Jurisdiction
The Tribe argues that the trial court erred in determining that sufficient
evidence existed to find "good cause to the contrary" to deny
the request for transfer pursuant to 25 U.S.C. § 1901-1963 (1988)
of the ICWA. We disagree.
The Indian Child Welfare Act
purposes of the ICWA are to promote the best interests of Indian children
and to protect the stability of Indian tribes. The ICWA is
based on the presumption that the protection of an Indian child's relationship
to the tribe is in the child's best interest. Chester
County Department of Social Services v. Coleman,
296 S.C. 355, 372 S.E.2d 912 (Ct.App.1988). Additionally, there is a general
presumption of jurisdiction favoring the tribal court for proceedings
concerning an Indian child who is domiciled off the *225
Choctaw Indian Band v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).
Here, because A.S. resides off
the reservation, the state courts and the tribal courts share jurisdiction.
25 U.S.C. § 1911(b) (1988) states:
any State court proceeding for foster care placement of, or termination
of parental rights to, an Indian child not domiciled or residing within
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.
The ICWA does not expressly define what constitutes a showing of good
cause to deny a motion to transfer jurisdiction to a tribal court. In
order to determine good cause, a court must exercise discretion in examining
both the case facts and applicable guidelines. To assist in
this decision, the Department of Interior/Bureau of Indian Affairs (BIA)
promulgated interpretative "Guidelines for the State Courts; Indian
Child Custody Proceedings." 44 Fed.Reg. 67,584, et seq. (Nov.
26, 1979). We note that these "administrative interpretations
of statutory terms are given important but not controlling significance."
Batterton v. Francis,
432 U.S. 416, 424, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448, 456 (1977).
The BIA guidelines at 44 Fed.Reg.
67,591 (1979) allow denial of transfer under the following circumstances:
Good cause not to transfer the proceeding exists if the Indian child's
tribe does not have a tribal court as defined by the Act to which the
case can be
Good cause not to transfer the proceeding may exist if any of the following
The 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.
The Indian child is over twelve years of age and objects to the transfer.
The evidence necessary to decide the case could not be adequately presented
in the tribal court without undue hardship to the parties or the witnesses.
The parents of a child over five years of age are not available and the
child has little or no contact with the child's tribe or members of the
Other jurisdictions have adopted
the following procedural standards, which we here adopt as applicable
The burden of establishing good
cause to deny transfer is upon the party opposed to the transfer. In
re Armell, 194 Ill.App.3d
31, 141 Ill.Dec. 14, 550 N.E.2d 1060, cert.
denied, 498 U.S. 940,
111 S.Ct. 345, 112 L.Ed.2d 310 (1990).
The determination of good cause
is within the discretion of the juvenile
court. In re Dependency
& Neglect of A.L.,
442 N.W.2d 233 (S.D.1989). All circumstances are examined
to make a case by case determination. In
re Wayne R.N., 107
N.M. 341, 757 P.2d 1333 (Ct.App.1988).
Here, in light of the BIA guidelines'
parts b(i) and b(iii), quoted above, the trial court ruled that there
was good cause to deny the Tribe's motion to transfer. The
court held that the Tribe's motion was untimely and that, under the doctrine
of forum non conveniens,
Denver was a more appropriate forum.
C. Proper Denial of Transfer of
The Tribe argues that the trial court erred in determining that its motion
for transfer was untimely. According to the Tribe, because
no final permanency planning hearing had occurred prior to its motion
for transfer, the proceedings were not at an advanced stage; therefore,
the Tribe asserts its motion was timely. We disagree.
Whether a motion for transfer is timely must be determined on a case-by-case
basis. The BIA provision governing timeliness is "designed
to encourage the prompt exercise of the right to petition for transfer
in order to avoid unnecessary delays." 44 Fed.Reg. 67,591 (1979).
The only appellate case in Colorado
that has addressed an issue similar to the one here is People
in Interest of J.L.P.,
870 P.2d 1252 (Colo.App.1994). In that case, a division of this
court affirmed the trial court's decision to transfer
jurisdiction of a custody proceeding involving two Indian children to
the tribal court, holding that a one-year delay did not render the request
untimely. The division held that, because no permanency planning
hearing had been conducted, the proceedings were not at an advanced stage.
Other jurisdictions have also
addressed the issue of whether a tribe's request for transfer was timely.
See In re
Maricopa County Juvenile Action,
171 Ariz. 104, 828 P.2d 1245 (App.1991) (court of appeals affirmed the
trial court's holding that petition to transfer was untimely because the
Pueblo tribe filed the petition two years after receiving notice of dependency
re Robert T., 246 Cal.Rptr.
168, 200 Cal.App.3d 657 (1988) (court denied transfer because the tribe
delayed 16 months after receiving notice before it made its motion for
re Dependency & Neglect of A.L., supra
(court of appeals affirmed trial court's decision not to transfer after
a tribe delayed one year with notice before petitioning for transfer).
Our review of the trial court's
decision not to transfer jurisdiction to the Tribe is limited to a determination
of whether substantial evidence supports that court's findings. See
People In Interest of J.L.P., supra.
the division held that a one-year delay did not, as a matter of law, constitute
good cause to refuse transfer because a permanency planning hearing had
not occurred and the proceedings were not at an advanced stage. Conversely,
although no permanency planning hearing has been conducted in this case,
in our view, the proceedings here were at an advanced stage. See
44 Fed.Reg. 67,591(b)(i) (1988).
record shows that approximately three and one half years passed from the
time A.S. was removed from the mother's custody until the Tribe filed
its motion for transfer. During that time, the child had been
in the same foster care, with the exception of several months during which
A.S.' paternal aunt had custody.
Additionally, during this period,
the DDSS and foster family took substantial steps to terminate parental
rights and conduct a permanency planning hearing for A.S.
For example, in November 1988,
upon the petition of the DDSS, the juvenile court adjudicated A.S. as
being dependent and neglected. In March 1990, the DDSS filed
a motion for termination. In July 1990 and November 1990,
respectively, the foster parents and the Tribe were granted intervenor
status. The Tribe at that time did not file a motion to transfer. The
DDSS then withdrew its motion for termination and presented a report indicating
no attachment existed between A.S. and mother and that A.S. would suffer
irreparable damage if moved from the foster parents' home.
In June 1991, the foster parents
filed a motion for permanency planning and custody hearing which was then
scheduled for January 31, 1992. On January 31, 1992,
the Tribe entered its appearance for the first time and filed a motion
to transfer jurisdiction to a tribal court. Subsequently,
both the permanency planning and custody hearing and motion to transfer
hearing were rescheduled for June 12, 1992.
In June, rather than proceed
with the permanency planning and custody hearing, the juvenile court ordered
A.S., the foster parents, the mother, and the mother's other children
to be evaluated by the National Center for American Indian and Alaskan
Native Mental Health Research. Both the transfer and permanency
planning hearings were reset for October 13, 1992. Because
the mother failed to comply with the court ordered evaluation, the hearing
was reset once again for January 25, 1993. In January, although
the mother had not complied *227
with the scheduled evaluation, the court proceeded with the transfer motion.
Similar to the facts in In
re Robert T., supra,
here, the Tribe did not indicate any interest in the proceedings until
the DDSS had moved for termination and the foster parents pursued a permanency
planning hearing. Additionally, the record shows that A.S. had been in
the same off-reservation, non-Indian foster care home for over four years.
See In re
Maricopa County Juvenile Action, supra,
at 1245 ("[T]he pueblo [tribe] had been notified of all proceedings,
yet waited over two years to petition for transfer, during which time
the child bonded to her foster adoptive family and planning for child's
In light of these facts, we conclude
that the trial court did not abuse its discretion in determining that
because the proceedings were at an advanced stage and the Tribe's motion
was untimely, jurisdiction should be maintained by the Denver court.
Best Interests of the Child
Lastly, the Tribe claims the court erred in allowing evidence concerning
A.S.' best interest to be admitted for the purpose of determining whether
the state or tribal court would adjudicate a child custody proceeding
involving an Indian child.
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 53-54, 109 S.Ct. 1597, 1611, 104 L.Ed.2d 29, 49-50 (1989),
the United States Supreme Court stated:
feelings we might have as to where [the Indian children] should live,
however, it is not for us to decide that question. We have
been asked to decide a legal question of who should make the custody determination
concerning these children--not what the outcome of that determination
should be.... It is not ours to say whether the trauma that might
result from removing these children from their adoptive family should
outweigh the interest of the tribe--and perhaps the children themselves
in having them raised as part of the Choctaw community.
In its order, the trial court
recognized that there is a split in authority "whether or not the
best interest of the child constitutes good cause not to transfer a proceeding
to tribal court." Yet, the trial court went on to say:
"[I]t is not necessary ... for the court to determine what
is in the best interest of the child or whether to apply this standard
as a part of its decision today." We agree that the best
interests standard was not a factor in the court's ruling. See
People in Interest of J.L.P., supra
(holding that the best interests of the child should not be considered
in evaluating transfers under the ICWA).
Although the parties may have
introduced evidence regarding the best interest of A.S. at the transfer
hearing, the trial court's ruling was based on other factors such as the
timeliness of the Tribe's motion for transfer.
We have considered the Tribe's
remaining assertions of error and find them to be without merit.
Accordingly, the trial court's
denial of the Tribe's motion to transfer jurisdiction was not an abuse
JONES and KAPELKE, JJ., concur.