(Cite as: 669 So.2d 187)

Court of Civil Appeals of Alabama.

R.B. and P.B.

v.

STATE DEPARTMENT OF HUMAN RESOURCES.

(In the Matter of W.J.B.).

R.B. and P.B.

v.

STATE DEPARTMENT OF HUMAN RESOURCES.

(In the Matter of J.C.B.).

2940259, 2940260.

Sept. 8, 1995.

Adoptive parents who sought voluntarily to terminate their parental rights to children who were members of Oglala Sioux Tribe could not raise on appeal the issue of trial court's denial of Tribe's motions to intervene and for transfer of jurisdiction to tribal court pursuant to Indian Child Welfare Act (ICWA), as Tribe was not a party to appeal.  Indian Child Welfare Act of 1978, § 2 et seq., 25 U.S.C.A. § 1901 et seq.

Lack of subject matter jurisdiction may be raised at any time by any party or by court before which case is tried or to which appeal has been taken.

Indian Child Welfare Act does not completely divest state courts of jurisdiction over children of Indian descent who do not live on reservation;  ?good cause? exception in provision authorizing transfer to tribal court allows state court to apply modified version of forum non conveniens doctrine when deciding whether to retain or transfer jurisdiction of Indian child custody proceeding.  Indian Child Welfare Act of 1978, § 101(b), 25 U.S.C.A. § 1911(b).

Court of Civil Appeals had no basis on which to overturn, on jurisdictional grounds, trial court's decision to retain proceeding involving voluntary termination of adoptive parents' rights to children who were members of Oglala Sioux Tribe rather than transfer it to Tribe, as Indian Child Welfare Act (ICWA) did not mandate tribal jurisdiction.  Indian Child Welfare Act of 1978, § 101(b), 25 U.S.C.A. § 1911(b).

Under Child Protection Act, termination of parental rights requires clear and convincing evidence that termination would be in child's best interests.  Code 1975, § 26-18-7.

Trial court's decision in proceeding to terminate parental rights is presumed to be correct when decision is based upon evidence presented ore tenus, and such decision will be set aside only if record shows it to be plainly and palpably wrong.

Trial court's refusal to terminate adoptive parents' rights to two older children, while granting voluntary termination with respect to three younger children whose foster parents wished to adopt them, was plainly and palpably wrong where court based decision on lack of adoptive resource for older children, which, though a factor indicating that termination of parental rights may not be in best interests of children, was not the only factor that should have been considered by trial court.  Code 1975, § 26-18-7.

Although detailed findings are not required in order terminating parental rights, Court of Civil Appeals must have some basis upon which to review trial court's conclusion without resorting to speculation and conjecture.

Child Protection Act and relevant case law does not require adoptive resource before parental rights can be terminated, as this would imply that court would be unable to terminate parental rights no matter how egregious the circumstances until adoptive resource could be located, and adoptive resource cannot always be found quickly.  Code 1975, § 26-18-7.

Court of Civil Appeals will not consider an argument for which no authority has been cited.  Rules App.Proc., Rule 28(a)(5).

*188 Appeals from Houston Juvenile Court JU-93-471.01 (appeal 2940259) and JU-89-142.03 (appeal 2940260);  William D. McFatter, Judge.

Malcolm R. Newman, Dothan, for Appellants.

William Prendergast  and Lynn Sensabaugh Merrill , Asst. Attys. Gen., Department of Human Resources, for Appellee.

*189 SAM A. BEATTY, Retired Justice.

The parents, R.B. and P.B., appeal from a judgment denying their petition to terminate their parental rights to two of their adopted children.   We reverse and remand.

In 1986, the parents adopted five Native American children, who were members of the Oglala Sioux Tribe in Pine Ridge, South Dakota.   The two oldest children were boys, and the three youngest children were girls.   The parents contacted their local county office of the Department of Human Resources (?DHR?) in 1992 because, they said, their problems with the children's behavior had escalated to the point that the family required assistance.   DHR worked with the family for over a year, but in December 1993 the parents filed petitions to terminate their parental rights to all five of the children, alleging that they were unable to discharge their responsibilities to and for the children.   DHR removed the children from the home and placed them in foster care;  the parents were ordered to pay child support.   DHR located a Native American family with Cherokee ties that was willing to care for the three girls, but had difficulty finding long-term foster care placement for the two boys, who were at that time 17 and 14 years old.

In April 1994, the Oglala Sioux Tribe filed motions to intervene in the case and to transfer jurisdiction to the tribe pursuant to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 -1934 (1983) (?ICWA?).   The trial court denied the Tribe's motions, but allowed representatives of the Tribe to attend a hearing in August.   In addition, the children's maternal aunt, who is a member of the Oglala Sioux Tribe, filed a petition for custody of the children.   Thereafter, the trial court terminated the parental rights of the parents to the three girls, whose foster parents wished to adopt them, but refused to terminate the parental rights of the parents to the two boys because there was no adoptive resource for them.   The trial court did not refer to the ICWA or to the petition of the maternal aunt in its order relative to the boys.

The parents contend on appeal that the trial court erred in denying their petition to terminate their parental rights on the ground that there was no adoptive resource, that the trial court erred in refusing to transfer jurisdiction to the Oglala Sioux Tribe, and that they are due a refund of child support paid to DHR if they prevail.

We first address the jurisdictional issue.   DHR argues that because the Tribe did not appeal the trial court's denial of its motions to intervene and to transfer jurisdiction, the parents cannot raise that issue.   We agree.   In McCulloch v. State Dep't of Human Resources, 536 So.2d 68, 71 (Ala.Civ.App.1988), this court held that an appellant cannot raise an issue affecting a non-appealing party.   Because the lack of subject matter jurisdiction may be raised at any time, however, by any party or by the court before which the case is tried or to which an appeal has been taken, Hanlon v. Mooney, 407 So.2d 554 (Ala.Civ.App.), rev'd on other grounds, Ex parte Hanlon, 407 So.2d 559 (Ala.1981), we have reviewed the jurisdictional requirements of the ICWA.

Section 1911(b) of the ICWA provides as follows:

?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....?

The ICWA does not completely divest state courts of their jurisdiction over children of Indian descent who do not live on a reservation.  Kiowa Tribe of Oklahoma v. Lewis, 777 F.2d 587 (10th Cir.1985), cert. denied, 479 U.S. 872, 107 S.Ct. 247, 93 L.Ed.2d 171 (1986).   The ?good cause? exception authorizing transfer from a state court to the tribal court allows state courts to apply a modified version of the forum non conveniens doctrine when deciding whether to retain or transfer jurisdiction of Indian child custody proceedings.  In re Maricopa Cty. Juvenile Action No. JS-8287, 171 Ariz. 104, 828 P.2d 1245 (Ariz.Ct.App.1991).   Because the ICWA does not mandate tribal jurisdiction, this court has *190 no basis on which to overturn the trial court's decision to retain the case, rather than to transfer it to the Tribe, on jurisdictional grounds.   Because the Tribe did not appeal, we will not further address the ICWA jurisdiction.

We now turn to the parents' argument that the trial court erred in refusing to terminate their parental rights to the boys on the sole ground that there was no adoptive resource.  Section 26-18-7, Ala.Code 1975, a part of the Child Protection Act, sets out the statutory grounds for termination of parental rights, as follows:

?(a) If the court finds from clear and convincing evidence, competent, material and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.   In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:

?(1) That the parents have abandoned the child, as herein defined;

?(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child;

?(3) That the parent has tortured, abused, cruelly beaten or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat or otherwise maltreat the child, or the said child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling;

?(4) Conviction of and imprisonment for a felony;

?(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent;

?(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.

?(b) Where a child is not in the physical custody of its parent or parents ..., in addition to the foregoing, [the court] shall also consider, but is not limited to the following:

?(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.

?(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.

?(3) Failure by the parents to maintain consistent contact or communication with the child.

?(4) Lack of effort by the parent to adjust his circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.

?....?

The termination of parental rights requires clear and convincing evidence that termination would be in the child's best interests.  State Dep't of Human Resources v. L.W., 597 So.2d 703 (Ala.Civ.App.1992).

[6]  The trial court's decision in proceedings to terminate parental rights is, of course, presumed to be correct when the decision is based upon evidence presented ore tenus, and such a decision will be set aside only if the record shows it to be plainly and palpably wrong.   Ex parte State Dep't of Human Resources, 624 So.2d 589, 593 (Ala.1993).

*191 Although detailed findings in a termination order are not required, id., the order in this case is insufficient.   Indeed, we cannot tell from the record what else, if anything, the court considered in making its decision.   This reviewing court must have some basis upon which to review the trial court's conclusion without resorting to speculation and conjecture.

This case presents a difficult circumstance, because the children's adoptive parents are seeking to relinquish their own parental rights.   The lack of an adoptive resource, in and of itself, may well be a factor indicating that termination of parental rights would not be in the best interests of these children, but it is clearly not the only factor that should have been considered by the trial court.   After reviewing the Child Protection Act and the cases decided by this court and our supreme court, we find no requirement that there must be an adoptive resource before parental rights can be terminated.   If that were true, the courts would be unable to terminate parental rights, no matter how egregious the circumstances, until an adoptive resource could be located, and an adoptive resource cannot always be found quickly.   Therefore, we hold that the trial court's refusal to terminate parental rights in this case, based solely upon the lack of an adoptive resource, was plainly and palpably wrong.

Finally, we turn to the parents' contention that the child support they have paid to DHR should be refunded.   They have cited no authority to this court in support of their argument.   This court will not consider an argument for which no authority has been cited.   Rule 28(a)(5), Ala.R.App.P.;  May v. Alabama Dep't of Human Resources, 512 So.2d 781 (Ala.Civ.App.1987).

The judgment refusing to terminate the parents' parental rights must be reversed and the cause remanded to the trial court for further proceedings under § 26-18-7, Ala.Code 1975.   It is so ordered.

The foregoing opinion was prepared by Sam A. Beatty, Retired Justice, Supreme Court of Alabama, while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

REVERSED AND REMANDED WITH DIRECTIONS.

ROBERTSON , P.J., and THIGPEN , YATES , and CRAWLEY, JJ., concur.

MONROE, J., concurs specially.

MONROE, Judge, concurring specially.

I agree with the majority that a finding of an adoptive resource is not required in order to terminate parental rights and, therefore, the judgment is due to be reversed and the case remanded for further proceedings to determine whether the adoptive parents' parental rights should be terminated.

However, on remand, I would further instruct the trial court to consider the maternal aunt's petition for custody and the tribe's petition to intervene when making its decision.   The fact that the children's maternal aunt has petitioned for custody and that the tribe is seeking to intervene in the case to help determine what would be in the children's best interest indicates that there are potential adoptive resources for the children.   Additionally, the record reveals that the family that is adopting the three girls has indicated a possible willingness to adopt the boys in the future.

Ala.Civ.App.,1995.

R.B. v. State Dept. of Human Resources

669 So.2d 187