Dinwiddie DSS v. Nunnally

• Court: Supreme Court of Virginia
• Decided: October 31, 2014
• Docket: 131584
• Status: Published

Opinion

VIRGINIA:

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Dinwi e Department of Social Services, Appellant,

aga st Record No. 131584 Court of Is Nos. 1947 12-2, 1948 12 2, and 1949-12-2

Renee 1 Nunnally, et al., Appellees.

Upon an appeal from a judgment rendered by t Court of als of Virginia.

Upon consideration of the record, briefs, and ument of counsel, the Court is of the opinion for the reasons stated in the unpublished memorandum opinion of the Court of s (Renee Nunnall et al. v. Dinwi rtment of Social Services, Record Nos. 1947-12-2, 1948-12 1, 1949-12-2) in this matter dated September 10, 2013, the judgment of the Court of Appeals will be affirmed. Renee Bagley Nunnally ("mother") and Timothy B. Nunnally ( II her") are the rents of young twin girls. mother is a member of the Citizen Potawatomi Nation ("Tribe"), a rally recognized Indian Tr that is locat in Shawnee, Oklahoma. The father is not of Indian descent and is not a member of any tribe. The children are either members of, or eligible to members of, the Tr The children were removed from their parents' home and placed in the temporary custody of a relative in November 2010, while se ces were offe to their parents. However, the parents failed to comply with the requirements set by the Juvenile and Domestic Relations District Court for Dinwi e County ("J&DR court"), and cust of the children was transferred to the Dinwiddie rtment of Social Services ("DDSS") in April 2011. In June 2011, DDSS filed petitions for foster care plans with the goal of adoption and to terminate t Nunnallys' parental rights. T Tr then filed a motion to intervene, which was granted on S r 16, 2011. The Tr also filed a motion to transfer juri ction to tribal court r the Indian Child Welfare Act of 1978 ("ICWA"), which J&DR court considered on October 14, 2011, along with DDSS' itions to terminate the mother and fat r's parental rights. The J&DR court denied the petitions to t nate parental rights, rently due to the unavailability of a required expert tness. DOSS and the guardian ad litem appointed to represent children filed t ly appeals in the Cir t Court of Dinwiddie County ("trial court") on November 1, 2011. The Tribe filed a notice of ervent on and a motion to transfer the case to tr" 1 court on De 12, 2011. Both parents also filed separate motions see ng to transfer the matter to tribal court. The trial court held a hea ng on t motion to transfer, during which DOSS and the guardian litem both objected to transferring the case to tribal court. On August 29, 2012, the trial court Id that good cause exis not to transfer proceeding to tr 1 court. The trial court determined the case was at an advanced stage when the transfer petition was received. The trial court also found that the case could not adequately be presented in tribal court without undue ha ip to

the parties or witnesses, and that to remove t children from their current foster horne would be extremely harmful to them. trial court subs ntly terminated the r and father's parental rights. The mot ther filed separate Is to the Court of Appeals of Vi inia challenging the trial court's holding that good cause existed not to transfer and the trial court's decision to terminate their rental rights. The Court of Is issued an unpublished memorandum opinion in which it revers the judgment of the trial court on the mot to transfer, vacat order terminat the parental rights of the mother and fat r, and remanded r r proceedings consistent with the published opinion it s taneously relea the case of son v. Fairfax Count 't of Famil Servs. , 62 Va. App. 350, 747 S.E.2d 838 (2013). In the Court of Appeals rejected the traditional "best interests of the child t st H in favor of the more limited test invol an immediate serious emotional or ical harm, or a substantial risk of such harm, to a child aris from the trans to a tribal court. Id. at 374 75, 747 S.E.2d at 850. We affirm the Court of Appeals' ision to reverse and remand this matter to t trial court in 1 of the standards articulated son.

is order shall be certified to the Court of Is of Vir a and to the Circuit Court of Dinwi e County, and shall be i the Virginia Reports.

JUSTICE MILLETTE, with whom CHIEF JUSTICE KINSER and JUSTICE POWELL oin, c oncurring in part and dissenting in rt.

major y opinion disregards prece rom the Supreme Court 0 the United States, substitutes its j nt for that of ess, and embraces an entirely novel analysis that is, upon in ction, i stinguishable from a st rd that the majority op on concedes is inappropriate. While I jo in that portion of the majority opinion directing remand of t s matter to the trial court, for t reasons explained below, I re fully dissent from that ion approving the incorporation of a fied "best erests of the child" consideration into rely jurisdictional " cause" analysis in considering r a matter should be transfe to a tribal court. I. Discussion

A. Indian Child Welfare Act

At issue is the Indian Child Welfare Act of 1978 (the "ICWA"), 25 U.S.C. § 1901 et seq., passed by t United States Congress over 35 years ago. The ICWA is designed to otect the best interests of I an children." 25 U.S.C. § 1902. As relevant to this appeal, the ICWA accomplishes this goal by p ding for tribal court juri ction over child custody ngs involving an Indian child rsuant to a "dual jurisdict scheme" set forth in 25 4

U.S.C. § 1911. Mississ i Band of Choctaw Indians v. HoI ~~~~~~--~~~~~~~~~~~~~~~~~~~~~

490 U.S. 30, 36 (1989). Section 1911(a) "establishes exclusive urisdiction in tribal courts ngs conce an Indian child who resides or is domiciled wi the reservation of such tribe, as well as r wards of tribal courts regardless of le." 490 U.S. at 36 (emphasis d) (internal quotation marks omitted). Section 1911(a) does not ly to this case. Section 1911(b) "creates concurrent but jurisdiction in t case of [Indian] i n not domi on the reservation" for proceedings involving ster care placement termination of rental rights. Hol ield, 490 U.S. at 36 ( sis added). Section 1911(b) applies to this case. Section 1911 (b) rmits "any [s] tate court proceeding the ster care placement of, or terminat of parental ri s to, an Indian child" to be "transfer[red] to the jurisdiction of the tribe." Four statutory requirements must be met for such a transfer to occur: (1) "ei r parent [ ,] or t Indian custodian [ ,] or the Indian child ' s t " must petition r a transfer; (2) neither parent can object to the transfer; (3) the tribal court to which the case would be transferred must not ine the transfer; and (4) there must an "absence of good cause to the contrary." 25 U.S.C. § 1911(b) Only this fou requirement is at issue in this appeal, and t majority opinion errs in approving the Court of Appeals' determination of what consi rations are app iate for the "good cause" ysis.

B. a "Best Interests of Anal is

Today, the majority opinion summa ly approves of the Court of Appeals' explanation of what a court should consider in the "good cause" analysis, as set forth in on v. Fairfax rtment of Famil Services, 62 Va. . 350, 747 S.E.2d 838 (20 3). I sagree th one si ificant aspect of son decision. The Court of als incorporated a modified "best interests of the ild" consi ration o the ly juri ctional "good cause" analysis. Id. at 373-77, 747 S.E.2d at 850-52. In particular, the majority opinion oves of a court's consideration of whether "clear and convincing evidence [establishes] that transferring the case to a tribal court would cause, or would present a s tantial risk of causing, immediate serious emotional or physical damage to child." Id. at 376, 747 S.E.2d at 85 . I rating this consideration into the Section 191 (b) "good cause" anal is is error for t following reasons. 1. A "Best Interests" Consideration Contravenes ted States Supreme Court Precedent

The Supreme Court of United States has noted that 25 U.S.C. 1 § 1911 is a jurisdict 1 statute. HoI field, 490 U.S. at 36. As such, Section 1911(b) only allows a state court to determine "who should make the [ ter care or parental rights] determination

1 HoI ield res d legal issues pertaining to Section 1911(a). See 490 U.S. at 42 54. Nevertheless, the Supreme Court's ral scussion of 25 U.S.C. § 1911 lies w equal rce to Section 1911 (b) . 6 concerning [Indian] children." Id. at 53. Notably, a state court cannot use Section 1911(b) to decide substantive issues, such as "what the outcome of [the foster care or rental rights] termination shou be. " Id. Instead, a state court "must r

to experience, wi and compassion of the" tribal court, because it is the tr 1 court that must rule on the substant issues once juris ction is transfer Id. at 53-54 ernal ion marks omitted); see also Affiliated Tribes of the Fort Berthold Reservation, 27 F.3d 1294, 1301 (8th Cir. 1994) ("Absent any indication of bias, we will not sume the Tribal Court to be anything other than competent and ial."). The "best interests" consideration contravenes this recti on by allowing a state court to second guess a tribal court's termination of substantive issues. This is because the actual act of transferring juris ction is not, in and of itself, something that can cause "serious emotional or physical damage to the child." 62 Va. . at 376, 747 S.E.2d at 851. Juris ction, be a "court's r to decide a case or issue a decree," is an stract concept, real world consequences of trans rring jurisdiction require only that parties a in front of, papers be filed with, a f rent tribunal. Black's Law Dicti 980 (10th ed. 2014); see Kern Oil & Refini Co. v. Tenneco 1 Co., 840 F.2d 730, 734 (9th Cir. 1988) (discussing the effects of urisdiction be transferred between ral district llate courts) The act of transferring juris ct ,then, cannot harm a ld. Instead, only substantive isions subs to

transfer of juris ct - such as a tribal court's determination that the Indian child should be moved to a new adoptive family before ultimate resolution of the proceedings fall within the scope of a "best interests" consideration. The Court of Appeals recognized is ct when it held that the focus "must remain on imrnediate serious emotional or physical damage flowing from the transfer self." 62 Va. App. at 376, 747 S.E.2d at 851. However, the Court of Appeals then compounded its error when it cons ide as relevant to this determination "whether Tr is willing to allow the child to stay her current environment, pending adjudication of the case on merits of termination and/or placement." Id. These post-transfer, substant decisions are the very tribal court determinations that a state court cannot second guess. See 201 ield 490 U.S. at 53-54. 2. Congress has Already Spoken to an I an Child's "Best Interests" in Jurisdictional Scheme

To extent a "best interests" consideration is relevant, it has already been decided by Congress enacting the ICWA. Congress made clear its reasons for enacting the ICWA in its "Congressional findings," stating specifically: "the States, [when] exercising their recogni jurisdiction over Indian chi custody proceedings through administrat and judi al bodies, have often failed to recognize essential tribal relations of Indian people and the cultural and social standards prevailing in Indian com~unities and families." 25 U.S.C. § 1901(5). The ICWA thus "protect[s] the rights of [an] Indian child as an Indian . . by making sure that Indian child welfare determinations are not based on a white, middle-class standard which, in many cases, forecloses acement

th an Indian ly.n HoI ield, 490 u.s. at 37 rnal quotation marks and alterations omitted). To protect Indian children from these dangers, Congress found it to be in the best interests of Indian children for ster care and parental right proceedings to be " sumptive[ly]" under the jurisdiction of a tribal, rat r than state, court. HoI 490 u.s. at 36; see 25 U.S.C. § 1902. is, the presumption of triba juri ction is in and of itself in the best interests of Indian Idren because tribal courts have "the rience, sdom, and compassion . . to shion an appropriate remedy" in these cases. HoI ield, 490 U.s. at 54; see 25 U.S.C. §§ 1901(3)-(5); 1902; 1911 (B). There is no "best interests" consideration to be made. Whether post-transfer actions have a negat impact on Indian children was a risk Congress beli appropriate because it is tr 1 courts that are most familiar with, and respons to, the needs of their Indian community and Indian children. 25 U.S.C. § 1901 (4), (5). Additionally, because the ICWA "precludes the imposition of 10 standards by creating a broad presumption of jurisdiction" in t 1 courts, allowing a "best interests" consideration under Section 1911(b) "defeats the very purpose for which the ICWA was enacted [by allowingj Anglo cultural ases into the analysis." 906 S.W.2d 152, 169-70 (Tex. App. 1995 ) 3. The Court Adopts a Minor y Position, One That Is Indistinguishable From a Position It Recognizes As Incorrect

Most states that have confronted the issue we face today have held that a "best interests" consideration is inappropriate under

9 the "good cause" analysis Section 1911(b). Eight states conclusively adopt this ition, including Colorado, Illinois, Minnesota, Missouri, Nebraska, New Mexico, North Dakota, Texas. 870 P.2d 1252, 1258 (Colo. Ct. App. 1994); In re Armell, 550 N.E.2d 1060, 1065-66 (Ill. App. Ct. 1990); In re Id of: R.L.Z. and R.G.L, 2009 Minn. App. Unpub. LEXIS 1015, at *14 16 (Minn. Ct. App. 2009) (unpublished); C.E.H. v. R.H., 837

Additionally, three other states have not expressly held that " cause" analysis of Section 1911(b) precludes a "best interests" considerat ,but their opinions imply such a position. rst, Iowa has adopted its own, state version of the ICWA. See Iowa Code §§ 232B.1 Because that state law provides more than the minimum standards of federal ICWA, the state ICWA governs transfer of jurisdiction for cases involving Indian children within Iowa. See In the Interest of N.V., 744 N.W.2d 634, 637 38 (Iowa 2008). Relevant to our purposes, the Iowa Supreme Court noted that Iowa courts never approved of a "best interests" consideration under the f ral ICWA when it was the governing law. Id. Second, the Utah Supreme Court held that Utah's state abandonment law cannot allow a r's parent to that minor's domicile to frustrate the exclus jurisdiction provision of Section 1911(a). In re ion of Hall 732 P.2d 962, 968­ 70 (Utah 1986). In ruling on the ICWA's juri ctional provis ing state law, the Utah Supreme Court refused to weigh typical "best interests" considerations, ludi "the bonding that [took] place between [the adoptive parents] [the minor] ." Id. at 971-72. Third, the Wisconsin Court of als held that a trial court did not err when considering a minor's "best erests" as it re ed to a Section 1911(b) "good cause" analysis, because that "best interests" cons ration was tied solel "to the timel ss of the tribe's attempt to take juri ction of [the] case." State v. Debra F., 695 N.W.2d 905, 2005 Wisc. App. 254, at *8 (Wis. Ct . . 2005). Timeliness is an appropriate consideration under the "good cause" analysis, and is not synonymous with a typical "best interests" consideration. 10 S.W.2d 947, 954 (Mo. Ct. App. 1992); In re Interest of Z ena R. v. Elise M., 825 N.W.2d 173, 184-86 (Neb. 2012) (overruling its decision to allow a "best interests" consideration in In re Interest of C.W., 479 N.W.2d 105 (Neb. 1992)); In re Guardiansh of Ashle Elizabeth R., 863 P.2d 451, 456 (N.M. Ct. App. 1993) i In re Interest of A.B. v. K.B., 663 N.W.2d 625, 633-34 (N.D. 2003); Tr:lpe, 906 S.W.2d at 169-71. Only a minority of six states allow a "best interests" consideration in the Section 1911(b) "good cause" analysis, uding Arizona, California, Indiana, Montana, Oklahoma, and South 3 Dakota. In re Mari Juvenile Action No. JS 8287, 828 P.2d 1245, 1251 (Ariz. Ct. App. 1991); In re Alexandria P., 228 Cal. App. 4th 1322, 1355 56 (Cal. Ct. App. 2014); In re ----------~----------------

525 N.E.2d 298, 308 (Ind. 1988); In re T.S., 801 P.2d 77, 79-80 (Mont. 1990); 754 P.2d 863, 869 (Okla. 1988) i In re Guardiansh of J.C.D., 686 N.W.2d 647, 650 (S.D. 2004) . Four other state courts have acknowledged the issue, but avoided resolving it because the issue was not properly before the court. Ex e C.L.J. --~--~~~~~- 946 So.2d 880, 893-94 (Ala. Civ. App.

3 The South Carolina Court of Appeals sanctioned a "best interests" consideration for Section 1911(b) purposes. Chester Cnt. 't of Social Servs. v. Coleman, 372 S.E.2d 912, 915 (S.C. Ct. App. 1988). However, when the South Carolina Supreme Court reviewed that cision, it remained notably silent on the "best interests" issue and held that the "good cause" analysis of Section 1911(b) is, essentially, a modified forum non conveniens analysis. See Chester of Social Servs. v. Coleman 399 S.E.2d 773, 775 77 (S.C. 1990). It is therefore unclear whether the South Carolina Court of Appeals' approval of the "best interests" consideration remains good law. 11 2006); In re C.R.H., 29 P.3d 849,854 n.24 (Alaska 2001); Inre ~~, 2007 Kan. App. Unpub. LEXIS 1154, at *2-6 (Kan. Ct. App. 2007) (unpublished); In re Guardians of J.O., 743 A.2d 341, 348 49 (N. Super. Ct. App. Div. 2000). The Court of Appeals rejected the pos ion of all these other courts, and instead fashioned a wholly novel, and supposedly narrow, "best interests" cons ration. ~~~_o_n_ 62 Va. App. at 373 76, 747 S.E.2d at 850-51. Today, by approving the Court of Appeals'

~--=--- on decision, the majority opinion embraces a position that is a minority of one. Moreover, upon closer scrutiny, it is clear that this supposedly limited "best interests" consideration is actually indistinguishable from the neral "best interests" standard. The Court of Appeals acknowledged that "the traditional best interest of the child analysis is too broad a consideration in deci ng whether good cause exists to retain jurisdiction" under Section 1911(b). Thompso~, 62 Va. App. at 374, 747 S.E.2d at 850. But the majority opinion's limited "best interests" consideration is identical to the general "best interest" st rd's scope and type of ew of post­ transfer tribal court rulings. First, the limited "best interests" cons ration affords the same scope of review of post-transfer tribal court rulings as the general "best interests" standard. The Court of Appeals created an "immediate serious emotional or physical damage flowing from the transfer itself" standard as the basis to determine what tribal court determinations are subject to a state court's "best interests" review. Id. at 376, 747 S.E.2d at 851. Putting to the side the fact that all post-transfer determinations are immune from a state

court's second guessing, see Hol 490 U.S. at 53-54, this standard does not actually operate to segregate reviewable from unreviewable tribal court rUlings. The transfer of jurisdiction itself is, essentially, the proximate cause of the tribal court's ability to make any ruling in the proceeding. Thus, all tribal court rulings occurring after a Section 1911(b) trans r of jurisdiction "flow[] from the trans r," 62 Va. App. at 376, 747 S.E.2d at 851, and are subject to a state court's review under the majority opinion's "best interests" consideration. Second, the limited "best interests" consi ration affords the same type of review of post-transfer tribal court rulings as the general "best interests" standard. That is, both allow a circuit court to focus on the same legal factors, including the emotional and physical impact that a ruling would have on a child. re Bailes v. Sours, 231 Va. 96, 101, 340 S.E.2d 824, 827-28 (1986) (hoI ng that a ruling which has a substantial "likelihood of flicting se ous harm" to the child "is repugnant to the child's best interest"), with Thompson, 62 Va. App. at 376, 747 S.E.2d at 851. Further, the factual context which informs the weighing of such factors is likely to be the same for all tribal court rulings. For example, questions of a child's mental and physical well being in light of the child's attachments to his current home, and the potential r danger in a new home, are equally present in a non­ nal ruling of whether a child should be moved to a new foster home before final disposition, and a ruling on the ultimate issue of whether the child should be placed in foster care or the parent's rights should be terminated. Simply put, the majority opinion's

limited "best interests" consideration and the general "best interests" standard apply the same law to the same types of facts. II. Conclusion

For the aforementioned reasons, while I join that portion of the majority opinion's disposition of this action that directs remand of the present appeal to the trial court for consideration of the issues, I cannot join the majority opinion's decision to ject the Section 1911(b) jurisdictional "good cause" analysis with a mechanism for a state court to preemptively second guess a tribal court's substantive de sions. I would overrule the decision of the Court of Appeals in ~.~~s~o~n in part, to the extent it directed ci t courts to evaluate a "best interests" consideration, and reverse the Court of Appeals' disposition in the present case on that issue, and affirm the Court of Appeals decision in the present case in part, to the extent it directed the circuit court to evaluate the other "good cause" considerations set forth in T son, 62 Va. App. at 377-83, 747 S.E.2d at 851-55.

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