Seminole Tribe v. DEPT. OF CHILDREN

959 So. 2d 761, 2007 WL 1544114
CourtDistrict Court of Appeal of Florida
DecidedMay 30, 2007
Docket4D06-3212
StatusPublished
Cited by2 cases

This text of 959 So. 2d 761 (Seminole Tribe v. DEPT. OF CHILDREN) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seminole Tribe v. DEPT. OF CHILDREN, 959 So. 2d 761, 2007 WL 1544114 (Fla. Ct. App. 2007).

Opinion

959 So.2d 761 (2007)

SEMINOLE TRIBE OF FLORIDA, a federally recognized Indian tribe, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.

No. 4D06-3212.

District Court of Appeal of Florida, Fourth District.

May 30, 2007.
Rehearing Denied August 2, 2007.

*762 Donald A. Orlovsky of Kamen & Orlovsky, P.A., West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for Appellee-Department of Children and Families.

Wendie Michelle Cooper, Orlando, for Appellee-Guardian Ad Litem.

STONE, J.

The Seminole Tribe of Florida (the tribe) appeals an order denying its motion to place K.D., a four-year-old child, pursuant to the Indian Child Welfare Act, 25 U.S.C. § 1901, et seq. (ICWA).

The tribe asserts that the trial court order disregards or misunderstands the mandates of the ICWA by failing to begin with a presumption in favor of the tribe's preference. We affirm.

K.D. was born prematurely to a Sioux mother who was registered with the tribe. He tested positive for cocaine at birth and was adjudicated dependent. He was placed in a medically licensed foster home in August 2002, with goals of long-term relative care and reunification with the mother. Because of his premature birth, K.D. had stringent medical needs. He was diagnosed with chronic lung disease/bronchopulmonary dysplasia (BPD) secondary to respiratory distress syndrome, atrial septal defect, retinopathy of prematurity, gastroesophageal reflux (GER), and vocal chord paralysis. Over time, his medical condition showed improvement. In subsequent stages of review, the goal remained reunification.

In late 2004, P.D., a registered Seminole, was confirmed to be K.D.'s father, and, as ICWA was implicated, notice to the tribe was given and the tribe intervened.

In December 2005, upon the mother's substance abuse relapse, the department moved to change the case plan from reunification to long term non-relative care with the foster parents who had cared for him since infancy. Less than two months later, the Seminole Tribe filed its motion to place K.D. pursuant to ICWA.

*763 In the motion, the tribe explains its original support for reunification with K.D.'s Native American mother, which it withdrew when she relapsed in mid-September 2005. Upon that occurrence, the "[t]ribe informed all parties that the Tribal Council would consider whether or not to find a Tribal, permanent family for [K.D.]." The tribe made its decision to place K.D. in a tribal family in mid-December, and K.D.'s mother supported his placement within the tribe. The tribe also suggested that a permanent decision at this juncture was premature and ran contrary to ICWA's provisions. The tribe posited that re-visiting permanency after K.D. had spent six months with his tribal family would be a better plan.

After several hearings, and in a fourteen-page order, the trial court found, by clear and convincing evidence, that it considered "all relevant grounds" listed in Florida Statute Chapter 39; ICWA, 25 U.S.C. § 1901 et seq., and particularly, § 1915. Placement of Indian Children (b) Foster Care or preadoptive placements; criteria; preferences[1]; and the BIA Guidelines, to deviate from the placement preferences in § 1915: F.3. Good Cause to Modify Preferences.[2]

The trial court also considered case law from different states in finding that the Guardian Ad Litem program, joined by the Department of Children and Family Services, had met its burden to overcome the presumption in favor of the tribe by clear and convincing evidence, as follows:

25. The decision made in the case is based on the above ICWA law along with the BIA Guidelines with regards to the specific facts of this case.
26. This Court is finding that the Guardian Ad Litem Program joined with the Department of Children and Families has shown by clear and convincing evidence as to a finding of good cause as to parts (ii) and (iii) of the BIA Guidelines regarding deviation from placement under ICWA law.
27. The Court finds that [K.D.] has extraordinary physical needs as evidenced by his numerous medical conditions and that a suitable family for placement meeting the preference criteria is unavailable.
28. While the "J Family" [the family put forward by the tribe] is an appropriate home for non-medically needed foster children (and the Court also notes: a wonderful, warm and loving family), *764 they are not a licensed medical foster home.
29. The Court finds by the testimony given, that the "J Family" is unaware of the extent of [K.D.]'s medical conditions. . . . [and is unprepared and untrained to deal with some of the medical needs]
* * *
32. Due to the "J Family's" lack of knowledge in the areas described above, and based on the testimony given during the hearing, the Court has concerns about the "J Family's" ability to know when [K.D.] is having a symptomatic day. . . .
33. The "Q Family's" [current foster parents] knowledge of [K.D.]'s medical conditions is due in large part to the amount of time [K.D.] has been with them. He has lived with them from the time he was eight months old until now; almost 4 years.
34. The Tribe intervened in [K.D.]'s case in January, 2005; over a year and a half ago. They never asked for his placement to be changed until this past January, 2006. The reason the Tribe gave was that they had no objection to his placement with the "Q Family" as [K.D.]'s mother was still working towards reunification and taking [K.D.] to tribal events. The Court find this argument lacking. This Court has been on this case since January, 2005. Since that time, the mother has had only supervised visits which she exercised sporadically. In fact, this Court had previously ruled last year that the mother could not have unsupervised visits with [K.D.] until she learned more about his medical conditions. She was not including [K.D.] in any Tribal functions or ceremonies. The Court is counting that time frame as time that the tribe could have been doing a diligent search for an appropriate Tribal placement.
35. The Court wants to make note that this decision is being made on the existing ICWA law and BIA Guidelines. The Court is not addressing the arguments made by the Guardian Ad Litem Program or the Department regarding the Best Interest's [sic] of the Child standard as an exception to the Federal law (which has not yet been decided on in Florida regarding Native American Children) as the Court is able to make it's [sic] decision by clear and convincing evidence based on the existing Federal law and BIA Guidelines.

In denying the tribe's motion, the trial court ruled that placement will remain with the "Q Family" under the goal of long term licensed care, but suggested that upon proper medical training and education for the "J Family," a visitation schedule be set up for K.D. to have contact with his extended family, if the "J Family" wishes to participate. The court also ordered that K.D. had a need to identify with his tribe and should be afforded every opportunity to do so and that the "Q Family" should make every effort to include K.D.

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Bluebook (online)
959 So. 2d 761, 2007 WL 1544114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seminole-tribe-v-dept-of-children-fladistctapp-2007.