Not Reported in N.E.2d, 1995 WL 776051 (Ohio App. 5 Dist.)

 


 

CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY.

Court of Appeals of Ohio, Fifth District, Muskingum County.

In the Matter of Robert, Lyman, Solome and Tanya SPANG.

No. 95-2.


Dec. 26, 1995.


Appeal from the Court of Common Pleas, Juvenile Division, Case No. 33464


For Appellant KEVIN VAN HORN 47 N. Fourth Street P.O. Box 2792 Zanesville, OH 43702-2792

For Appellee RON ARNESON 2204 Wingate Billings, MT 59102

ROBERT SMITH Muskingum County Children Services P.O. Box 1187 Zanesville, OH 43702-1187


Before GWIN, P.J., and HOFFMAN and READER, JJ.


OPINION

HOFFMAN, J.

*1 Appellant Christy Norton, aka Christy Spang, appeals the decision of the Muskingum County Court of Common Pleas, Juvenile Division, which relinquished jurisdiction over a complaint filed by the Muskingum County Children Services alleging her children to be dependent, endangered, neglected and abused and which transferred jurisdiction of the complaint to the North Cheyenne Tribal Court.


The complaint of the Muskingum County Children Services was filed on July 11, 1994. At the time of the filing of the complaint, the children were residing with the mother in Muskingum County. Following an emergency shelter care hearing, the children were placed in the care of appellant's aunt and uncle. The children are members of the Northern Cheyenne Indian Tribe because their natural father is a member of the tribe. The Northern Cheyenne Tribe requested transfer of jurisdiction over the complaint to their tribal court on July 29, 1994, pursuant to 25 U.S.C. Section 1901, et seq. (Indian Child Welfare Act). The appellant filed her memorandum in opposition to the transfer on August 5, 1994. Subsequently, the trial court conducted a pre-trial conference with all parties present and represented by counsel, except the natural father. On February 6, 1995, the trial court ordered the case transferred to the North Cheyenne Trial Court. It is from that order appellant now seeks our review and raises the following sole assignment of error:

THE MUSKINGUM COUNTY JUVENILE COURT WAS WITHOUT AUTHORITY TO TRANSFER JURISDICTION OF THE WITHIN MATTER TO THE NORTHERN CHEYENNE TRIBAL COURT WHEN THE NATURAL MOTHER, CHRISTINE NORTON, OBJECTED TO SAID TRANSFER PURSUANT TO THE DICTATES OF 25 UNITED STATES CODE SECTION 1911(b).


We sustain this assignment of error.


25 U.S.C. Section 1911(b) is the statute at issue herein. It reads as follows:

(b) Transfer of proceedings; declination by tribal court

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 of the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.


Appellant maintains the plain language of the statute gives her, as natural parent, a veto right over a request to transfer jurisdiction to the tribal court. In response, the Northern Cheyenne Tribe argues such a veto right does not exist and the trial court must transfer the case to the tribal court when requested unless good cause is shown to the contrary. The Northern Cheyenne Tribe argues such interpretation is consistent with the overriding purpose of the Indian Child Welfare Act to preserve the cultural and social standards and integrity prevailing in Indian communities and families.


*2 Though we recognize and share the general purpose underlying the Indian Child Welfare Act, we nevertheless cannot ignore the plain language of the statute. To adopt the Northern Cheyenne Tribe's interpretation of the statute would require us to ignore the express language included therein, “absent objection by either parent.” We must presume Congress included that language for a reason.


Though we do not take issue with the trial court's determination that the appellant failed to demonstrate good cause why the case should not be transferred to the tribal court, unlike the trial court we find her express objection thereto sufficient under the statute to negate the transfer. Such interpretation finds support in the case of Brown on Behalf of Brown v. Rice (1991), 760 F.Supp. 1459 United States Dist. Ct., Kansas, and in dicta to In the Matter of the Adoption of Baby Boy L (1982), 643 Pacific 2d 168. We remind the parties that even though we find the trial court erred in transferring jurisdiction of the complaint to the tribal court, if the children are determined to be dependent, neglected, or abused by the trial court, it may choose to award temporary custody of the children to the Northern Cheyenne Tribe, one of its tribal members or any other suitable person or agency.


The judgment of the Muskingum County Court of Common Pleas, Juvenile Division, is reversed.


GWIN, P.J., and HOFFMAN and READER, JJ., concur.


JUDGMENT ENTRY


For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Muskingum County Court of Common Pleas, Juvenile Division, is reversed, and the matter is remanded to that court for further proceedings in accordance with our opinion and the law.

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