Dinwiddie Dep’t of Social Servs. v. Nunnally
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Supreme Court of Virginia?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Supreme Court of Virginia. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Mother and Father (“Parents”) were the parents of twin girls. Mother was a member of the Citizen Potawatomi Nation (“Tribe”), Father was not a member of any tribe, and the children were either members of, or eligible to be members of, the Tribe. The Dinwiddie Department of Social Services (DDSS) filed petitions to terminate Parents’ parental rights. The Juvenile and Domestic Relations District Court (“J&DR court”) denied the petitions. The DDSS appealed. The Tribe and Parents sought to transfer the case to tribal court. The trial court held that good cause existed not to transfer the proceeding to tribal court and denied the motion to transfer. The court then terminated Parents’ parental rights. The court of appeals reversed the trial court's decision on the motion to transfer, vacated the award terminating Parents' parental rights, and remanded. In so doing, the court rejected the traditional “best interests of the child” test in favor of a more limited test involving a substantial risk of harm to a child arising from the transfer to a tribal court. The Supreme Court affirmed and remanded in light of the standards articulated by the court of appeals in Thompson v. Fairfax County Dep’t of Family Servs.
Download PDF
VIRGINIA: .Yn, tk./~ {5owd o/r~ hdd tU tk./~ {5owdf?IJ~ t/n tk {5it!fo/~on Dinwi tk 31st Fri ckyO/ October, 2014. e Department of Social Services, aga st Renee Appellant, Record No. 131584 Court of Is Nos. 1947 12-2, 1948 12 2, and 1949-12-2 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 Upon consideration of the record, briefs, and of counsel, the Court is of the opinion for the reasons stated in the unpublished memorandum opinion of the Court of (Renee Nunnall ument et al. v. Dinwi s 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. member of the Citizen Potawatomi Nation ("Tribe"), a recognized Indian Tr that is locat mother is a rally 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 court"), and cust Dinwiddie e County ("J&DR of the children was transferred to the 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 rights. T Tr granted on S then filed a motion to intervene, which was r 16, 2011. transfer juri Nunnallys' parental The Tr also filed a motion to 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 The J&DR court denied the r's parental rights. petitions to t nate parental rights, unavailability of a required expert rently due to the 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. notice of ervent on and a motion to transfer the case to tr" court on De motions see 12, 2011. Both parents also filed separate ng to transfer the matter to tribal court. The trial court held a hea ng on t during which DOSS and the guardian transferring the case to tribal court. trial court The Tribe filed a Id that good cause exis proceeding to tr 1 court. motion to transfer, litem both objected to On August 29, 2012, the not to transfer 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 2 ip to 1 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 Appeals of Vi ther filed separate Is to the Court of 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 the mother and fat order terminat r, and remanded the parental rights of r r proceedings consistent with the published opinion it s the case of son v. Fairfax Count Va. App. 350, 747 S.E.2d 838 (2013). taneously relea 't of Famil In Servs. , 62 the Court of Appeals rejected the traditional "best interests of the child t st H in favor of the more limited test invol emotional or a child aris an immediate serious ical harm, or a substantial risk of such harm, to from the trans to a tribal court. Id. at 374 75, 747 S.E.2d at 850. We affirm the Court of Appeals' this matter to t articulated trial court in 1 son. 3 ision to reverse and remand of the standards is order shall be certified to the Court of a and to the Circuit Court of Dinwi Vir Is of e County, and shall be the Virginia Reports. i JUSTICE MILLETTE, with whom CHIEF JUSTICE KINSER and JUSTICE POWELL oin, c oncurring in part and dissenting in rt. major Court 0 rom the Supreme y opinion disregards prece the United States, substitutes its j nt for that of ess, and embraces an entirely novel analysis that is, upon rd that the majority stinguishable from a st in ction, i op on concedes is inappropriate. While I jo the majority opinion directing remand of t court, s matter to the trial reasons explained below, I re for t ion approving the incorporation of a that erests of the child" consideration into transfe fully dissent from fied "best rely jurisdictional r a matter should be cause" analysis in considering " in that portion of to a tribal court. I. Discussion Indian Child Welfare Act A. At issue is the Indian Child Welfare Act of 1978 (the "ICWA"), 25 U.S.C. § 1901 et seq., passed by t 35 years ago. of I The ICWA is designed to an children." 25 U.S.C. § 1902. United States Congress over otect the best interests As relevant to this appeal, the ICWA accomplishes this goal by p ding for tribal court juri ngs involving an Indian child ction over child custody rsuant to a "dual jurisdict 4 scheme" set forth in 25 U.S.C. § 1911. Mississ i Band of Choctaw Indians v. HoI ~~~~~~--~~~~~~~~~~~~~~~~~~~~~ 490 U.S. 30, 36 (1989). Section 1911(a) "establishes exclusive tribal courts ngs conce or is domiciled wi urisdiction in an Indian child who resides the reservation of such tribe, as well as wards of tribal courts regardless of at 36 (emphasis d) 1911(a) does not le." r 490 U.S. (internal quotation marks omitted). Section ly to this case. Section 1911(b) "creates concurrent but jurisdiction in t case of [Indian] i reservation" for proceedings involving termination of added). rental rights. Hol n not domi on the ster care placement ield, 490 U.S. at 36 ( sis Section 1911(b) applies to this case. Section 1911 (b) rmits "any [s] tate court proceeding ster care placement of, or terminat of parental ri the 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 Indian child ' s t r parent [ ,] or t " must petition parent can object to the transfer; r a transfer; U.S.C. § 1911(b) appeal, and t ine the transfer; and an "absence of good cause to the contrary." Only this fou 25 requirement is at issue in this majority opinion errs in approving the Court of Appeals' determination of what consi the "good cause" (2) neither (3) the tribal court to which the case would be transferred must not (4) there must Indian custodian [ ,] or the ysis. 5 rations are app iate for a "Best Interests of Anal is B. Today, the majority opinion summa ly approves of the Court of Appeals' explanation of what a court should consider in the "good on v. Fairfax cause" analysis, as set forth in rtment of Famil (20 3). Services, 62 Va. th one si sagree I decision. ild" consi "good cause" analysis. son ificant aspect of als incorporated a modified "best The Court of interests of the . 350, 747 S.E.2d 838 ration o the ly juri ctional Id. at 373-77, 747 S.E.2d at 850-52. In oves of a court's consideration particular, the majority opinion 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 I child." Id. at 376, 747 S.E.2d at 85 . rating this consideration into the Section 191 (b) cause" anal is is error for t "good following reasons. 1. A "Best Interests" Consideration Contravenes ted States Supreme Court Precedent The Supreme Court of § 1911 is a jurisdict United States has noted that 25 U.S.C. 1 statute. HoI field, 490 U.S. at 36. 1 As such, Section 1911(b) only allows a state court to determine "who should make the [ ter care or parental rights] determination 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) . 1 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 termination shou to be. " experience, wi because it is the tr issues once juris Id. rental rights] Instead, a state court "must r and compassion of the" tribal court, 1 court that must rule on the substant 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. of transferring juris This is because the actual act ction is not, in and of itself, something that can cause "serious emotional or physical damage to the child." 62 Va. be . at 376, 747 S.E.2d at 851. a "court's real world consequences of trans jurisdiction require only that parties a f rent tribunal. (9th Cir. 1988) urisdiction be rring in front of, Black's Law Dicti (10th ed. 2014); see Kern Oil & Refini F.2d 730, 734 ction, r to decide a case or issue a decree," is an stract concept, be filed with, a Juris papers 980 Co. v. Tenneco 1 Co., 840 (discussing the effects of transferred between ral district llate courts) The act of transferring juris ld. ct ,then, cannot harm a isions subs Instead, only substantive 7 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 of a "best interests" consideration. recognized is fall within the scope The Court of Appeals 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 willing to allow the child to stay Id. is her current environment, pending adjudication of the case on and/or placement." Tr merits of termination 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, their recogni jurisdiction over Indian chi through administrat recognize and judi [when] exercising custody proceedings al bodies, have often failed to essential tribal relations of Indian people and the cultural and social standards prevailing in Indian families." 25 U.S.C. § 1901(5). com~unities and 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 8 acement th an Indian ly.n ield, 490 u.s. at 37 HoI 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 and parental right proceedings to be " jurisdiction of a tribal, rat u.s. at 36; see 25 U.S.C. triba juri Indian sumptive[ly]" under the r than state, court. 1902. . to There is no §§ 1 courts that are most familiar with, 1901 (4), 1901(3)-(5); Whether post-transfer actions have a negat impact on appropriate because it and respons needs of their Indian community and Indian children. § sdom, "best interests" consideration Indian children was a risk Congress beli is tr rience, shion an appropriate remedy" in these ield, 490 U.s. at 54; see 25 U.S.C. 1902; 1911 (B). to be made. 490 is, the presumption of Idren because tribal courts have "the HoI HoI ction is in and of itself in the best interests of and compassion . cases. § ster care to, the 25 U.S.C. (5). Additionally, because the ICWA "precludes the imposition of 10 standards by creating a broad presumption of jurisdiction" in 1 courts, allowing a "best interests" consideration under t 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). conclusively adopt ition, including Colorado, Illinois, this Eight states 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 Elise M., 825 N.W.2d 173, 184-86 (Neb. 2012) ena R. v. (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 Elizabeth R., 863 P.2d 451, 456 (N.M. Ct. App. 1993) of A.B. v. K.B., 663 N.W.2d 625, 633-34 i of Ashle In re Interest (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 Dakota. 3 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); 1988) i 754 P.2d 863, 869 (Okla. 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. 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 3 2006); In re C.R.H., 29 P.3d 849,854 n.24 ~~, 2007) (Alaska 2001); Inre 2007 Kan. App. Unpub. LEXIS 1154, at *2-6 (Kan. Ct. App. (unpublished); In re Guardians 49 (N. of J.O., 743 A.2d 341, 348 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 747 S.E.2d at 850-51. ration. ~~~_o_n_ 62 Va. App. at 373 76, 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" indistinguishable from the consideration is actually 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 12 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 jurisdiction "flow[] from the trans r," r of 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. Bailes v. Sours, 231 Va. 96, 101, 340 S.E.2d 824, 827-28 (hoI re (1986) 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 13 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 the Section 1911(b) ject jurisdictional "good cause" analysis with a mechanism for a state court to preemptively second guess a tribal court's substantive de Court of Appeals in ci sions. ~.~~s~o~n I would overrule the decision of the in part, to the extent it directed 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. A Copy, Teste: Clerk 14
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
