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(Cite
as: 687 P.2d 477)
Colorado
Court of Appeals,
Div.
IV.
The
PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest
of
J.L.G.
and J.L.G., Children,
and
Concerning D.L.G., Respondent-Appellant,
and
Oglala
Sioux Tribe, Intervenor-Appellant.
No.
82CA1109.
Feb.
16, 1984.
Rehearing
Denied March 29, 1984.
Provision
of the Indian Child Welfare Act requiring that a case
involving the foster care placement of Indian children be transferred
to the jurisdiction of the tribe was not applicable where
initial placement of children in foster care took place prior
to enactment of the Act and, though mother thereafter admitted
portions of dependency and neglect petition and children were adjudicated
dependent and neglected, those actions were not subsequent proceedings because
they did not place the children in different foster care,
did not terminate the mother's parental rights, and did not
place the children in a preadoptive or adoptive situation. Indian
Child Welfare Act of 1978, §§ 101(b),
102, 113, 25
U.S.C.A. §§ 1911(b),
1912, 1923.
*477
Pamela A. Gordon, Denver, for petitioner-appellee.
Lynn W. Lehmann, Denver, Guardian Ad Litem for children.
Bill Myers, Denver, for respondent-appellant.
No appearance for intervenor-appellant.
ENOCH, Chief Judge.
This case involves the foster care placement of two Sioux
Indian children. Respondent, the mother, appeals the court's decision not
to transfer jurisdiction of the case to the Oglala Sioux
Tribe in Pine Ridge, South Dakota.
The basic issues before the court are the interpretation and
application of certain provisions of the Indian Child Welfare Act,
25 U.S.C. § 1901
et seq. (1981 Supp.). Congress passed this Act with the
express purpose of protecting the best interests of Indian children
and promoting the stability *478
and security of Indian tribes and families. The Act establishes
minimum federal standards for the removal of Indian children from
their families and for their placement in foster or adoptive
homes which will reflect the unique values of Indian culture.
See
25 U.S.C. § 1902
(1981 Supp.).
The Act, when applicable, requires that the parent or Indian
custodian and the Indian child's tribe be notified of any
pending foster care placement or termination
of parental rights proceedings involving Indian children, and of their
right of intervention in such proceedings. See
25 U.S.C. § 1912(a)
(1981 Supp.). In addition, the Indian custodian and the Indian
child's tribe have the right to intervene at any point
in such proceedings. See
25 U.S.C. § 1912(c)
(1981 Supp.). Furthermore, where the Indian child is not domiciled
or residing within the reservation of the child's tribe, the
state court, in the absence of good cause to the
contrary, must transfer such a 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. See
25 U.S.C. § 1911(b)
(1981 Supp.).
The mother here argues that the court did not apply
the proper standard in determining whether good cause existed to
deny transfer to the Indian children's tribe. We agree with
the court's decision not to transfer jurisdiction to the tribe,
albeit for different reasons. We conclude, as argued by the
appellee, that the provisions of the Act are not applicable
to this case.
In July 1978, the two children were voluntarily placed by
their mother in a foster home in Denver. On August
8, 1978, a dependency and neglect petition and a motion
for a protective order barring removal of the children without
prior order of the court were filed in the Denver
Juvenile Court. On September 7, 1978, the motion for a
protective order was granted.
In November 1978, the Indian Child Welfare Act was passed,
with an effective date of May 7, 1979. 25 U.S.C.
§ 1923
(1981 Supp.).
On June 12, 1979, believing the Act to be applicable,
the trial court sent notice of this proceeding to the
Sioux Tribe as provided for in § 1912
of the Act. On August 21, 1979, the mother admitted
that the children were homeless, without proper care, or not
domiciled with her, through no fault of her own. She
also waived her right to trial. The adjudication portion of
the dependency and neglect action was reserved for later hearing.
On December 11, 1979, a dispositional review hearing was held
and the Sioux Tribe requested that jurisdiction be transferred to
their Tribal Court at that time. On January 29, 1980,
another dispositional review hearing was held and the mother objected
to transfer of jurisdiction. Therefore, the court did not transfer
jurisdiction to the Tribal Court pursuant to § 1911(b)
of the Act, which specifically states that no transfer can
occur if a parent objects.
After January 29, 1980, two more dispositional review hearings took
place, and on November 11, 1980, the children were adjudicated
dependent and neglected, nunc pro tunc January 29, 1980. In
October 1981, the Sioux Tribe, having procured the mother's consent,
reinstated its request to the court for jurisdictional transfer. On
March 12, 1982, the court denied the jurisdictional transfer on
the basis that good cause not to transfer had been
shown pursuant to § 1911(b)
of the Act.
To determine whether or not the Act applies, it is
necessary to examine and analyze those provisions which govern the
effective date of the Act. Section 1923 was designed for
the orderly phasing in of the effect of the Act.
It states that:
"[N]one
of the provisions of [the Indian Child Welfare Act] ...
shall affect a proceeding under state law for foster care
placement ... which was initiated or completed prior to [May
7, 1979] but shall apply to any subsequent proceeding in
the same matter or subsequent proceeding affecting custody or placement
of the same child." 25 U.S.C. § 1923
(1981 Supp.).
*479
The first issue presented by this provision is whether any
actions taken by the state court constituted "foster care placement."
Foster care placement is defined by the Act as "any
action removing an Indian child from its parent for temporary
placement in a foster home where the parent cannot have
the child returned on demand, but where parental rights have
not been terminated." 25 U.S.C. § 1903(1)(i)
(1981 Supp.). Under this definition, foster care placement was initiated
in this case on September 7, 1978, by the granting
of the protective order which precluded the mother from removing
the children from foster care without a court order. Since
this action took place prior to May 7, 1979, the
Act did not apply to the initial placement of the
children in foster care.
However, since May 7, 1979, the mother has admitted portions
of the dependency and
neglect petition, the children have been adjudicated dependent and neglected,
and several dispositional review hearings have taken place. Thus, the
second issue is whether these actions are "subsequent proceedings in
the same matter or subsequent proceedings affecting custody or placement
of the same child," and therefore, were governed by the
Act pursuant to § 1923.
The legislative history of the Act indicates that its provisions
are to apply only "to any subsequent discrete phase of
the same matter or with respect to the same child
initiated after enactment." 6 U.S.Code
Cong. & Ad.News
7548 (1978). The history includes the following example of such
discrete phases:
"For
instance, if the foster care placement of an Indian child
was initiated or completed prior to enactment and then, subsequent
to enactment, the child was replaced
for foster care,
or an action for termination of parental rights was initiated,
or the child was placed in a preadoptive situation, or
he was placed for adoption, the provisions of the act
will be applicable to those subsequent actions." (emphasis supplied) 6
U.S.Code
Cong. & Ad.News, supra.
In light of these examples, it is apparent that under
the provisions of § 1923,
Congress intended that the Act would not apply to situations
where, as here, the foster care placement was initiated prior
to the passage of the Act. It would, however, apply
to those proceedings concerning the same child or children occurring
after passage of the Act which involve a change in
the physical
location of the children or a change in the legal
relationship existing between the parents and their children. In the
case at hand, the subsequent proceedings did not replace the
children in different foster care, did not terminate the mother's
parental rights, and did not place the children in a
preadoptive or adoptive situation. They only served to continue the
foster care placement initiated prior to the enactment of the
Act. See
Matter of T.J.D.,
615 P.2d 212 (Mont.1980); see
also Bird Head v. Tail,
209 Neb. 575, 308 N.W.2d 837 (1981); Matter
of R.N.,
303 N.W.2d 102 (S.D.1981). Therefore, we hold that, under § 1923,
the provisions of the Act are not applicable to this
case and that the state court did not err in
refusing to transfer jurisdiction to the Sioux Tribe.
The mother's other contentions are without merit.
Judgment affirmed.
HODGES and SILVERSTEIN, JJ.,
[FN*] concur.
FN*
Sitting by assignment of the Chief Justice under provisions of
the Colo.
Const.,
Art. VI, Sec. 5(3), and § 24-51-607(5),
C.R.S. (1982 Repl.Vol. 10).
687 P.2d 477
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