|
(Cite
as: 11 Kan.App.2d 531, 729 P.2d 1234)
Court
of Appeals of Kansas.
In
the Interest of H.D., C.D., and C.D., Children Under the
Age of Eighteen Years.
No.
58310.
Dec.
11, 1986.
**1235
*531
Syllabus by the Court
1.
Proceedings
concerning any child who appears to be a child in
need of care shall be governed by the Code for
Care of Children except
in those instances when the Indian Child Welfare Act of
1978, 25 U.S.C. §
1901
et
seq.
(1982), applies.
K.S.A. 1985 Supp. 38-1503.
2.
In
any involuntary proceeding conducted pursuant to the Code for Care
of Children, K.S.A. 1985 Supp. 38-1501 et
seq.,
when the court has reasonable grounds to believe a child
involved in the proceeding is or may be an Indian
child, the court must direct that proper notice be served
on the tribe or Secretary of the Interior.
3.
Circumstances
under which a magistrate or district court judge has reason
to believe a child involved in a child in need
of care proceeding is an Indian are set forth more
fully in the opinion.
4.
The
court must direct that proper notice be served in order
to provide the tribe with an opportunity to be heard
on the issue of the applicability of the Indian Child
Welfare Act to the involuntary proceedings.
5.
Notice
procedures set forth in the Indian Child Welfare Act and
the Code of Federal Regulations are to be followed.
25
U.S.C. §
1912(a)
(1982);
25
C.F.R. §
23.11
(1986).
6.
Violation
of the Indian Child Welfare Act notice provisions may be
cause for invalidation of the district court proceedings.
25
U.S.C. §
1914
(1982).
Douglas
B. Myers, Dodge City, for appellant.
Daniel
L. Love, Co. Atty., and Leigh Hood, Asst. Co. Atty.,
for appellee.
**1236
Douglas Brunson, guardian ad litem.
Before
DAVIS, P.J., and C. PHILLIP ALDRICH, and BARRY A. BENNINGTON,
District Judges, Assigned.
*532
DAVIS, Judge:
This
appeal from termination of parental rights involves a question of
an Indian tribe's right of notification of involuntary proceedings involving
Indian children.
Indian Child Welfare Act of 1978, 25 U.S.C. §
1901
et
seq.
(1982).
In
this case, parental rights of both the natural mother and
father were terminated by the district magistrate judge.
Both parents appealed to the district court.
On May 2, 1985, upon de novo review, the district
judge ordered that parental rights of both parents be terminated.
Both parents appealed to this court;
the
mother subsequently abandoned her appeal.
The
mother is 15/32 degree Indian blood of the Cherokee Tribe.
She applied for tribal membership prior to the severance hearing
but did not become an enrolled member of the tribe
until approximately six weeks after the magistrate severed parental rights.
The State contends that because the father is not Indian
he has no standing to argue the application of the
Act and that the mother's abandonment of her appeal renders
this case moot.
This contention is without merit.
Under the Act, ?
?parent?
means any biological parent or parents of an Indian child....?
25
U.S.C. §
1903(9)
(1982).
The
father claims that the Indian Child Welfare Act of 1978,
25 U.S.C. §
1901
et
seq.,
applied to the proceedings below and that the court's failure
to follow the provisions of the Act invalidates the termination
order.
Although we do not decide the question of the applicability
of the Act, we agree that the court's failure to
direct that proper notice be served upon the tribe or
Secretary of the Interior renders the termination order invalid.
[1]
K.S.A.
1985 Supp. 38-1503 sets forth the court's jurisdiction over proceedings
under the Kansas Code for Care of Children:
?Jurisdiction.
(a)
Proceedings
concerning any child who appears to be a child in
need of care shall be governed by this code, except
in those instances when the Indian child welfare act of
1978 (25 USC §§
1901
et seq.) applies.?
(Emphasis
added.)
The
Indian Child Welfare Act (hereinafter Act) expressly declares congressional policy:
?The
Congress hereby declares that it is the policy of this
Nation to protect the best interests of Indian children and
to promote the stability and security of Indian tribes and
families by the establishment of minimum Federal standards for the
removal of Indian children from their families and the placement
of such children in foster or adoptive homes which will
reflect the unique values of Indian culture, and by providing
for assistance to Indian tribes in the operation of child
and family service programs.?
25
U.S.C. §
1902
(1982).
*533
See, e.g.,
In
re Adoption of Baby Boy L.,
231 Kan. 199, 205, 643 P.2d 168 (1982).
The policy of the Act is further discussed in the
Guidelines for State Courts in Indian Child Custody Proceedings:?Congress
through the Indian Child Welfare Act has expressed its clear
preference for keeping Indian children with their families, deferring to
tribal judgment on matters concerning the custody of tribal children,
and placing Indian children who must be removed from their
homes within their own families or Indian tribes.
Proceedings
in state courts involving the custody of Indian children shall
follow strict procedures and meet stringent requirements to justify any
result in an individual case contrary to these preferences.
The Indian Child Welfare Act, the federal regulations implementing the
Act, the recommended guidelines and any state statutes, regulations or
rules promulgated to implement the Act shall be liberally construed
in favor of a result that is consistent**1237
with these preferences.
Any ambiguities in any of such statutes, regulations, rules or
guidelines shall be resolved in favor of the result that
is most consistent with these preferences.?
(Emphasis
added.)
44 Fed.Reg. 67,585-86 (1979).
In
order for the Act to apply, two prerequisites must exist:
?(1)
a ?child
custody proceeding?
(2) involving an ?Indian
child,?
as those terms are defined in the Act.?
In
re Adoption of Baby Boy L.,
231 Kan. at 207, 643 P.2d 168.
The
definitional section of the Act provides in part:
?For
the purposes of this chapter ...
the term-
?(1)
?child
custody proceeding?
shall mean and include-
....
?(ii)
?termination
of parental rights' which shall mean any action resulting in
the termination of the parent-child relationship;
....
?(4)
?Indian
child?
means any unmarried person who is under age eighteen and
is either (a) a member of an Indian tribe or
(b) is eligible for membership in an Indian tribe and
is the biological child of a member of an Indian
tribe;
...?
25
U.S.C. §
1903.
Clearly,
this was a child custody proceeding within the meaning of
the Act.
The magistrate, however, rejected the parents' claim that the children
were Indian.
Prior to the termination hearing before the magistrate, the parents
filed a petition to transfer jurisdiction to the tribal court.
The magistrate denied the petition ?for
the reason that the biological parents are not as yet
enrolled as members of the Cherokee Indian Nations and therefore
pursuant to 25 U.S.C. section 1903(4) the minor children do
not meet the definition of Indian children at this time.?
*534
The parents resubmitted the petition to transfer jurisdiction at the
termination hearing and again raised the issue of the applicability
of the Indian Child Welfare Act.
The magistrate denied the petition a second time, reasoning that
mother and children were not enrolled when the action commenced.
The court concluded that the tribe had the opportunity ?of
being aware of these proceedings by way of the Indian
Welfare Agency with whom the [parents] were working,?
but expressed no interest in helping with enrollment or intervention.
Prior
to de novo review by the district court, the mother
became an enrolled member of the Cherokee Nations and the
parents filed another motion to invoke the jurisdiction of the
tribe pursuant to the Indian Child Welfare Act.
The magistrate denied this third request on the ground that
the mother was not an enrolled member of the tribe
when the case was heard.
Both
parents appealed to the district court.
The district court terminated parental rights without mention of the
Act.
[2]
Unlike
the case of In
re Adoption of Baby Boy L.,
231 Kan. 199, 643 P.2d
168, we are not concerned with a determination of whether
the Act applies.
In this decision, we are concerned with the tribe's right
to notification of involuntary proceedings where the court has reasonable
grounds to believe a child subject to the proceeding is
or may be an Indian child.
25 U.S.C. §
1912(a)
(1982).
In Baby
Boy L.,
the Supreme Court noted:
?On
April 1, 1981, it was brought to the court's attention
that Perciado was an enrolled member of the Kiowa Tribe
and that the federal Indian Child Welfare Act of 1978
might apply, and
therefore the case was continued for thirty days to allow
proper notice to be given to the Kiowa Tribe.?
(Emphasis
added.)
231 Kan. at 202, 643 P.2d 168.
The
tribe was properly notified and given the opportunity to be
heard on the issue of the applicability of the Act.
Baby
Boy L.,
231 Kan. at 202, 643 P.2d 168.
In
this case, however, the Cherokee Tribe was never notified of
the pendency of state court proceedings.
Consequently, the tribe was denied the opportunity to be heard
on **1238
the issue of whether the Act applied to the state
court proceedings.
[3]
When
and under what circumstances is tribal notice and opportunity to
be heard regarding the applicability of the Act required?
The Guidelines for State Courts set forth pretrial requirements, which
include verification by the court of the child's Indian status:
*535
?B.1.
Determination That Child Is an Indian
?(a)
When
a state court has reason to believe a child involved
in a child custody proceeding is an Indian, the court
shall
seek verification of the child's status from either the Bureau
of Indian Affairs or the child's tribe....?
(Emphasis
added.)
44
Fed.Reg. 67,586.
The
Guidelines set forth circumstances that trigger an inquiry by the
court and petitioners regarding the child's Indian status for purposes
of the Act:
?(c)
Circumstances
under which a state court has reason to believe a
child involved in a child custody proceeding is an Indian
include but are not limited to the following:
?(i)
Any
party to the case, Indian tribe, Indian organization or public
or private agency informs the court that the child is
an Indian child.
?(ii)
Any
public or state-licensed agency involved in child protection services or
family support has discovered information which suggests that the child
is an Indian child.
?(iii)
The
child who is the subject of the proceeding gives the
court reason to believe he or she is an Indian
child.
?(iv)
The
residence or the domicile of the child, his or her
biological parents, or the Indian custodian is known by the
court to be or is shown to be a predominantly
Indian community.
?(v)
An
officer of the court involved in the proceeding has knowledge
that the child may be an Indian child.?
44
Fed.Reg. 67,586.
The
Commentary to the pretrial requirements further provides:
?This
guideline makes clear that the best source of information on
whether a particular child is Indian is the tribe itself.
It is the tribe's prerogative to determine membership criteria and
to decide who meets those criteria.
Cohen,
Handbook of Federal Indian Law
133 (1942).
Because of the Bureau of Indian Affairs' long experience in
determining who is an Indian for a variety of purposes,
its determinations are also entitled to great deference.
See,
e.g., United
States v. Sandoval
[231 U.S. 28, 58 L.Ed. 107, 34 S.Ct. 1 (1913)
].
....
?...
The
Act mandates a tribal right of notice and intervention in
involuntary proceedings
but not in voluntary ones.
Cf. 25 U.S.C. §
1912
with 25 U.S.C. §
1913....?
(Emphasis
added.)
44
Fed.Reg. 67,586.
[4]
The
magistrate judge concluded that the Act did not apply based
upon his finding the natural mother was not enrolled in
the Cherokee Tribe at the time he terminated parental rights.
We note that ?[e]nrollment
is not always required in order to be a member
of a tribe.
Some tribes do not have written rolls.
Others have rolls that list only persons that were members
as of a certain date.
Enrollment
is the common evidentiary means of establishing Indian status, but
it is not the only means nor is it *536
necessarily determinative.
United
States v. Broncheau,
597 F.2d 1260, 1263 (9th Cir.1979).?
(Emphasis
added.)
44
Fed.Reg. 67,586.
In
this case, various circumstances, which existed throughout both the magistrate
and district court proceedings, raised a reasonable question regarding the
children's Indian status.
Those circumstances include the following:
1.
The
three girls were first placed in temporary custody of the
Ford County Department of Social and Rehabilitation Services (SRS) in
July 1982.
The
July 1982 court report prepared by the licensed social worker
of the Dodge City SRS office states:
**1239
?The
recommendation of this agency is that the girls remain in
SRS custody pending further investigation of the background of the
parents.
It
has been learned that the girl's [sic] natural mother is
part Indian and the agency would recommend that the American
Indian Law be further checked by the court.?
(Emphasis
added.)
2.
In
August 1982, the social worker received a phone call from
the mother and a caseworker with the Indian child welfare
agency in Tulsa, Oklahoma.
The mother informed the Ford County social worker that she
was of Cherokee descent.
3.
In
November 1982, Ford County SRS contacted the Indian Health Care
Resource Center in Tulsa, Oklahoma, and requested that a home
study be completed.
4.
In
October 1984, after the magistrate severed parental rights, SRS notified
4 Tribes Social Services Program in Horton, Kansas, and Cherokee
Nations in Tahlequah, Oklahoma, that the three girls were in
SRS custody.
5.
In
March 1985, the parties stipulated to the mother's enrollment as
a member of the Cherokee Nations.
SRS
knew and informed the court very early in the pendency
of these proceedings that these three children were of Indian
descent.
Based
upon the record and factors set forth above, we conclude
that both the magistrate and district courts had reasonable grounds
to believe the children involved in this proceeding are or
may be Indian children.
[5]
In
any involuntary proceeding conducted pursuant to the Code for Care
of Children, K.S.A. 1985 Supp. 38-1501 et
seq.,
when the court has reasonable grounds to believe a child
involved in the proceeding is or may be an Indian
child, the court *537
must direct that proper notice be served upon the tribe
or Secretary of the Interior.
The tribe must be given the opportunity to be heard
on the issue of the applicability of the Indian Child
Welfare Act to the involuntary proceedings.
The
Act sets forth the notice requirements:
?In
any involuntary proceeding in a State court, where the court
knows or has reason to know that an Indian child
is involved, the party seeking the foster care placement of,
or termination of parental rights to, an Indian child shall
notify the parent or Indian custodian and the Indian child's
tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of intervention.
If
the identity or location of the parent or Indian custodian
and the tribe cannot be determined, such notice shall be
given to the Secretary
in like manner, who shall have fifteen days after receipt
to provide the requisite notice to the parent or Indian
custodian and the tribe.
No foster care placement or termination of parental rights proceeding
shall be held until at least ten days after receipt
of notice by the parent or Indian custodian and the
tribe or the Secretary:
Provided,
That the parent or Indian custodian or the tribe shall,
upon request, be granted up to twenty additional days to
prepare for such proceeding.?
(Emphasis
added.)
25
U.S.C. §
1912(a).
The
Code of Federal Regulations provides, in part:
?(a)
If
the identity or location of the parents, Indian custodians or
the Indian child's tribe cannot be determined, notice
of the pendency of any involuntary child custody proceeding involving
an Indian child
in a state court shall
be sent by registered mail with return receipt requested
to the appropriate address listed in paragraph (b) of this
section.
....
?(4)
For
proceedings in Kansas ...
notice should be sent to the following address:
Anadarko
Area Director, Bureau of Indian Affairs, P.O. Box 368, Anadarko,
Oklahoma 73005.
....
?(c)
Notice
shall include the following information if known:
**1240
?(1)
Name
of the Indian child, birthdate, birthplace,
?(2)
Indian
child's tribal affiliation,
?(3)
Names
of Indian child's parents or Indian custodians, including birthdate, birthplace,
and mother's maiden name, and
?(4)
A
copy of the petition, complaint or other document by which
the proceeding was initiated.
?(d)
Upon
receipt of the notice, the Bureau shall make a diligent
effort to locate and notify the Indian child's tribe and
the Indian child's parents or Indian custodians.
Such notice may be by registered mail with return receipt
requested or by personal service and shall include the information
provided under paragraph (c) of this section in addition to
the following:
?(1)
A
statement of the right of the biological parents, Indian custodians
and the Indian tribe to intervene in the proceedings.
?(2)
A
statement that if the parent(s) or Indian custodian(s) is unable
to afford counsel, counsel will be appointed to represent them.
*538
?(3)
A
statement of the right of the parents, the Indian custodians
and the child's tribe to have, upon request, up to
twenty additional days to prepare for the proceedings.
?(4)
The
location, mailing address and telephone number of the court.
?(5)
A
statement of the right of the parents, Indian custodians and
the Indian child's tribe to petition the court for transfer
of the proceeding to the child's tribal court, and their
right to refuse to permit the case to be transferred.
?(6)
A
statement of the potential legal consequences of the proceedings on
the future custodial and parental rights of the parents or
Indian custodians.
?(7)
A
statement that, since child custody proceedings are usually conducted on
a confidential basis, tribal officials should keep confidential the information
contained in the notice concerning the particular proceeding and not
reveal it to anyone who does not need the information
in order to exercise the tribe's rights under the Act.
?(e)
The
Bureau shall have ten days, after receipt of the notice
from the persons initiating the proceedings, to notify the child's
tribe and parents or Indian custodians and send a copy
of the notice to the court.
If within the ten-day time period the Bureau is unable
to verify that the child is in fact an Indian,
or meets the criteria of an Indian child as defined
in section (4) of the Act, or is unable to
locate the parents or Indian custodians, the Bureau shall so
inform the court prior to initiation of the proceedings and
state how much more time, if any, it will need
to complete the search.
The Bureau shall complete its search efforts even if those
efforts cannot be completed before the child custody proceeding begins.
?(f)
Upon
request from a potential participant in an anticipated Indian child
custody proceeding, the Bureau shall attempt to identify and locate
the Indian child's tribe, parents or Indian custodians for the
person making the request.?
(Emphasis
added.)
25
C.F.R. §
23.11
(1986).
The
record does not reveal any communication between the Ford County
Attorney's Office (on behalf of the court, K.S.A. 1985 Supp.
38-1510) and the Cherokee Nations of Oklahoma or the Secretary
of the Interior.
[6]
Violation
of the Indian Child Welfare Act notice provisions may be
cause for invalidation of the proceedings:
?Any
Indian child who is the subject of any action for
foster care placement or termination of parental rights under State
law, any parent or Indian custodian from whose custody such
child was removed, and the Indian child's tribe may petition
any court of competent jurisdiction to invalidate such action upon
a showing that such action violated any provision of sections
1911, 1912, and 1913 of this title.?
25
U.S.C. §
1914
(1982).
**1241
Under the facts of this case, we find the termination
of parental rights invalid because the court had reasonable grounds
to believe that the children subject to the severance proceeding
are or may be Indian children and failed to direct
notice to the tribe or *539
Secretary of the Interior in accordance with the Act.
25
U.S.C. §
1912(a).
We
therefore reverse the decision of the district court and remand
this case for further proceedings consistent with this opinion.
Kan.App.,1986.
In
Interest of H.D.
11
Kan.App.2d 531, 729 P.2d 1234
| 
