In re J.T.

Annotate this Case
In re J.T. (96-051); 166 Vt. 173; 693 A.2d 283

[Filed 10-Jan-1997]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 96-051


In re J.T. and C.T.                               Supreme Court

                                                  On Appeal from
                                                  Caledonia Family Court

                                                  June Term, 1996


Alan W. Cook, J.

       Charles S. Martin of Martin & Paolini, Barre, for appellant mother

       Michael Rose, St. Albans, for appellant father

       Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O.
  Duane, Assistant Attorney General, Waterbury, for appellee Department of
  Social and Rehabilitation Services

       Robert Appel, Defender General, and Henry Hinton, Appellate Defender,
  Montpelier, for appellees juveniles


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       GIBSON, J.   J.T.'s and C.T.'s mother and father separately appeal a
  family court order terminating their parental rights to both children.  The
  mother argues that the court erred in terminating parental rights without a
  prior approved case plan and that the court improperly incorporated CHINS
  findings in the disposition findings.  The father argues that the court
  failed to determine whether the Vermont Department of Social and
  Rehabilitation Services (SRS) made reasonable efforts to assist him.  Both
  parents contend that the court should have provided notice under the Indian
  Child Welfare Act (ICWA) as soon as it had reason to believe that the
  children were of Indian ancestry.  We remand for the court to give
  notification of the proceeding to the Bureau of Indian Affairs.  If a tribe
  responds, further proceedings consistent with the ICWA will be necessary;
  otherwise, we affirm the court's finding that it is in the best interests
  of J.T. and C.T. that parental rights be terminated.

 

       SRS first became involved with the family in May 1989, when the
  parents' failure to maintain telephone service while C.T. suffered from a
  breathing disorder posed a serious medical threat.  From that date through
  1993, SRS became increasingly involved with the family.  Between 1989 and
  early 1991, two attempts were made to improve the mother's and father's
  parenting skills through the Family Intensive Program and a parent
  education program. Both counselors terminated the programs when the
  mother's mental health issues made working on parenting skills impossible. 
  The mother began participation in a mental health program in 1989, but
  dropped out in January 1990.  From late 1992 to early 1993, the mother
  again entered counseling, both individually and with the children, but
  attempts to improve parenting skills were unsuccessful.

       In spite of the services offered by SRS, the condition of the family
  deteriorated steadily. By 1993 SRS had substantiated physical and sexual
  abuse to both children by family members and persons living with family
  members.  There was also extensive evidence of physical neglect and
  emotional abuse to both children, particularly J.T.  The children were
  taken into temporary custody by SRS in September 1993, and after a merits
  hearing in November 1993, they were found to be children in need of care
  and supervision (CHINS) due to lack of proper parental care.

       A case plan was developed by SRS in March 1994 and given to both
  parents.  Although the case plan set a goal of family reunification, the
  parents were informed at a case plan review on March 31, 1994 that failure
  to follow the plan could result in a change in the goal. Following the
  CHINS order and distribution of the case plan, both parents continued to
  receive family services through SRS.

       After completion of a family evaluation by an independent
  psychologist, a disposition hearing was scheduled for July 27, 1994.  At
  the start of the hearing, the parents informed the court that they planned
  to separate.  Deciding that the existing case plan, which called for
  reunification of the children with both parents, was not appropriate if the
  parents separated, the

 

  court discussed development of new case plans, ended the hearing, and
  issued an order maintaining custody of both children with SRS.  When SRS
  was unable to confirm that the mother and father had separated as
  announced, alternative case plans were not developed. Instead, a new SRS
  case plan dated September 9, 1994 called for termination of parental
  rights.

       In October 1994, SRS filed a petition to terminate parental rights;
  hearings began in December.  Following eight days of hearings, the court
  terminated parental rights.

                                     I.

       Mother and father both raise several issues on appeal.  The mother
  first argues that the trial court erred in finding a change in
  circumstances when there had been no previously approved case plan.  But
  termination of parental rights can occur in one of two ways.  Where there
  has been a prior disposition order and an approved case plan, the court
  must find a substantial change in material circumstances and that it is in
  the best interests of the child that all parental rights be terminated.  In
  re M.M., 159 Vt. 517, 521, 621 A.2d 1276, 1279 (1993). Parental rights may
  also be terminated at the initial disposition hearing if the court finds it
  to be in the best interests of the child to do so.  In re B.M., 7 Vt. L.W.
  131, 132 (1996); 33 V.S.A. § 5540.  The first method is preferred, In re
  B.M., 7 Vt. L.W. at 132, but the court's findings in either situation will
  be upheld unless clearly erroneous.  See In re J.M., 160 Vt. 146, 149, 624 A.2d 362, 363-64 (1993).

       Some confusion was created by the abbreviated July 27 hearing, which
  was originally intended to be a disposition hearing.  Additional confusion
  was created when the trial court included a finding of substantial change
  in material circumstances in its January 1996 termination order, stating it
  was unsure of the effect of the July 27 hearing.  Nonetheless, it is clear
  that the July 27, 1994 hearing was not a disposition hearing, and therefore
  the court's finding of substantial change in material circumstances was
  unnecessary.  No evidence was considered during the July 27 hearing -- on
  either the mother's and father's parenting abilities or the children's
  physical and emotional condition.  Instead, discussion focused solely on
  the adequacy

 

  of the current case plan and the need for new case plans.  Although
  labelled a disposition order, the order issued that same day simply
  maintained the status quo until the confusion created by the parents'
  announcement of change in marital status could be sorted out.  During a
  hearing on visitation six weeks later, the parties discussed the effect of
  the July 27 hearing.  All parties and the court agreed there had been no
  disposition hearing and that disposition was still before the court. 
  Ultimately, the court's extensive findings detailing nearly five years of
  evidence of the parents' inability to care adequately for the children are
  sufficient to support the court's conclusion that it was in the best
  interests of the children to terminate parental rights.  Because the
  court's finding of change in circumstances was unnecessary, we do not
  address the mother's argument that modification of a disposition order due
  to change in circumstances cannot be supported without a prior approved
  case plan.

       Our prior decisions do not affect our decision here.  We have
  previously held that a court cannot continue a disposition hearing to
  determine how the situation of a child or a parent will change over time. 
  In re B.B., 159 Vt. 584, 588, 621 A.2d 1270, 1273 (1993); In re R.B., 152
  Vt. 415, 422, 566 A.2d 1310, 1313-14 (1989), cert. denied by Appleby v.
  Young, 493 U.S. 1086 (1990); In re A.A., 134 Vt. 41, 43, 349 A.2d 230, 232
  (1975).  In all those cases, however, a full disposition hearing was held,
  see, e.g., In re B.B., 159 Vt. at 585, 621 A.2d  at 1271 ("court took
  extensive evidence at the disposition hearing"), and the hearings were
  continued for other reasons: to allow the court to accept additional
  evidence on a parent's progress, id. at 586, 621 A.2d  at 1271, or to
  facilitate settlement of a contested disposition, In re R.B., 152 Vt. at
  422, 566 A.2d  at 1313-14.  Holding proceedings open to allow admission of
  evidence of a parent's improvement is impermissible, because it places a
  child "in a state of continuing limbo rather than creating a stable living
  arrangement, as the law requires."  In re R.B., 152 Vt. at 422, 566 A.2d  at
  1314.

       Such was not the situation here.  The hearing was not continued to
  allow additional evidence of the parents' improvement.  Rather, it was
  continued as a result of the parents'

 

  announcement of their separation.  After discussion among the parties and
  the court, the July 27 hearing was terminated and rescheduled for a date
  when case plans more appropriate to the parents' marital situation would be
  available.  The court was not required to hold a disposition hearing when
  all parties agreed they were not prepared to address what was in the
  children's best interests.

       Nonetheless, the mother claims that terminating her parental rights
  without an approved case plan is reversible error because she was never
  given information on how she could get her children back.  The court's
  findings of fact clearly refute this argument.  SRS developed a case plan
  for the parents on March 14, 1994, which it reviewed with them on March 31,
  1994.

       Both parents' participation in the programs outlined in the plan
  belies the mother's allegation that she could not meet "expectations that
  were never announced."  Noting the specific programs offered to both
  parents, including individual counseling and the Nurturing Program for the
  mother, and parent education, supervised visitation, and other casework
  services for both parents, the court made detailed findings on the parents'
  participation in these programs and the lack of improvement in each.  Both
  parents were told that supervised visits were an opportunity to demonstrate
  improved parenting skills.  Nevertheless, the mother continued to act
  inappropriately and to fly into rages during visits, while the father did
  nothing to curb the mother's behavior.  The evidence supports the court's
  finding that the March 1994 case plan gave the parents full opportunity to
  develop and demonstrate improved parenting skills, and that it was in the
  children's best interests to terminate parental rights when the parents
  failed to make improvement.

       Next, the mother argues that the court erred in adopting findings from
  the CHINS proceeding in the termination order because of the differences in
  burdens of proof.  While the State's burden in a CHINS merits hearing is
  proof by a preponderance of the evidence, this burden rises to clear and
  convincing evidence in a proceeding to terminate parental rights.  In re
  J.R., 6 Vt. L.W. 287, 288 (1995).

 

       In the termination order, the court first analyzed the facts under
  each of the 33 V.S.A. § 5540 factors and found, by clear and convincing
  evidence, that it was in the best interests of the children to terminate
  parental rights.  In addition, the court incorporated certain findings from
  the CHINS proceeding.  Although the CHINS court was required to determine
  by only a preponderance of the evidence that the children were in need of
  care and supervision, the court found by the higher standard of clear and
  convincing evidence that J.T. was without the proper parental care
  necessary for her physical and emotional well-being and that C.T. was
  without the proper parental care necessary for her physical well-being. 
  The argument that the trial court could not incorporate findings based on
  clear and convincing evidence from the CHINS proceeding is without merit.

       The father argues that the court erred in failing to make specific
  findings concerning whether SRS made reasonable efforts to assist him. 
  Under 33 V.S.A. § 5540, the court is required to make specific findings on
  four statutory considerations.  Whether SRS made reasonable efforts to
  assist the parents is not one of them, however; therefore, specific
  findings are not required.  Cf. In re K.H., 154 Vt. 540, 541-43, 580 A.2d 48, 49 (1990), cert. denied by D.H. v. Vermont Dep't of Social &
  Rehabilitation Servs., 498 U.S. 1070 (1991) (court not required to make
  findings concerning SRS's reasonable efforts to return child to home under
  Adoption Assistance and Child Welfare Act).

       Any assistance SRS provides to troubled parents is, however, a factor
  in determining whether SRS met its burden of showing that a parent is
  unlikely to be able to resume parental duties within a reasonable period of
  time.  33 V.S.A. § 5540(3); see In re H.S., 161 Vt. 83, 87, 632 A.2d 1106, 1108 (1993) (SRS's intensive work with mother showed reasonable efforts to
  assist her attempt to resume parental duties).  Here, the court's findings
  on the services offered to the father and his lack of benefit from the
  programs support its conclusion that the father failed to recognize and
  address deficiencies in his own parenting skills, and that, even if he
  remained separated from the mother, he would be unable to resume parenting
  within a

 

  reasonable period of time.  Although the father attended marriage
  counseling with the mother beginning in February 1994, the counselor
  concluded that the mother's intimidation prevented the father from
  contributing to a stable home.  Supervised visits with the children were an
  opportunity for both parents to show improved parenting skills, but the
  father "did nothing to curb the rage or reign in the erratic behaviors" of
  the mother.  The court found that SRS attempted to provide additional
  services to the father, but that he made no effort to revise his work
  schedule to enable participation.  The father has failed to show these
  findings to be clearly erroneous.

                                     II.

       Both parents argue that the court erred in failing to provide notice
  under the Indian Child Welfare Act once the court had reason to believe
  that children of Indian ancestry were involved in the proceeding.  We
  agree, and remand to the trial court for notice as required by the Act.

       The Indian Child Welfare Act (ICWA) of 1978 was enacted to protect the
  interests of Indian children and promote the stability and security of
  Indian families and tribes.  25 U.S.C. § 1902 (1988 & Supp. II 1990); In re
  M.C.P., 153 Vt. 275, 282, 571 A.2d 627, 631 (1989). The father correctly
  notes that the Act is jurisdictional, In re M.C.P., 153 Vt. at 289, 571 A.2d  at 634; In re N.A.H., 418 N.W.2d 310, 311 (S.D. 1988), and therefore,
  its applicability may be raised by any party or by the court itself at any
  time.  See Woodard v. Porter Hosp., Inc., 125 Vt. 264, 266, 214 A.2d 67, 70
  (1965).  Despite the dissent's lament that the ICWA was not adequately
  raised before the trial court, even when a jurisdictional issue is never
  raised by a party we must take action on our own motion, if necessary, when
  a defect appears.  See Murphy Motor Sales, Inc. v. First Nat'l Bank of St.
  Johnsbury, 121 Vt. 404, 406, 159 A.2d 94, 96 (1960) ("[W]hen such fact
  [lack of jurisdiction] appears we do not wait for parties to object, but
  this Court must act of its own motion.").

       The ICWA requires that:

       [i]n 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 . . . termination of parental rights to [] an Indian
       child shall notify the parent or Indian custodian and the Indian
       child's tribe . . . of the pending proceedings and of their right of
       intervention.  If the identity or location of the . . . tribe cannot be
       determined, such notice shall be given to the Secretary.

  25 U.S.C. § 1912(a).  The statute defines Indian child as "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."  Id. § 1903(4). Although
  the ICWA states it is the duty of the party seeking termination of parental
  rights to give notice, we have found that this duty also extends to the
  court.  See In re M.C.P., 153 Vt. at 288, 571 A.2d  at 634 (ICWA requires
  that trial court give notice to tribe); see also In re D.S., 577 N.E.2d 572, 575 (Ind. 1991) (remanded for trial court to serve notice to tribe).

       Although the applicability of the ICWA was not raised at the trial
  level, the possible Indian ancestry of the children was brought to the
  attention of the trial court.  When the mother, father, and children
  underwent a family evaluation upon referral by SRS, the father told a
  psychologist that his father was a "full-blooded Mohican."  The
  psychologist included the statement in her report to SRS.  Although the
  statement appears in the middle of a sixty-page report, the report figured
  prominently in SRS's decision to seek termination of parental rights, was
  admitted into evidence during disposition hearings, and was referred to in
  the court's findings of fact.  Neither the agency nor the court can claim
  unawareness of information found in a report ordered and relied upon for
  disposition.

       We conclude that the trial court had a duty to provide notice once it
  had reason to believe the children were of Indian ancestry.  The Bureau of
  Indian Affairs (BIA) of the Department of Interior has issued "Guidelines
  for State Courts; Indian Child Custody Proceedings," outlining situations
  where a court should know that the child involved is an Indian child, thus
  requiring the court to notify the tribe.  See In re M.C.P., 153 Vt. at 286,
  288; 571 A.2d  at 633, 634. One situation is where "[a]ny 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."  44 Fed. Reg. 67,584, 67,586 (1979)
  (emphasis added).  Such information serves to trigger inquiry by the court
  and the parties to determine whether the child is an Indian.  Id.

       In any event, even if the issue was not clearly in front of the trial
  court, it has certainly been presented for our consideration by all of the
  parties to the appeal.  The most obvious circumstance that serves to
  trigger potential application of the ICWA is where "[a]ny party to the
  case, Indian tribe, Indian organization or public or private agency informs
  the court that the child is an Indian child."  44 Fed. Reg. 67,584, 67,586. 
  Both the mother and the father have informed this Court of their belief
  that the children are Indian children based on the father's understanding
  that his father was a full-blooded Native American.  Inasmuch as this is a
  jurisdictional issue that can be raised at any time before this Court and
  an issue that requires action elsewhere before it can be resolved, we must
  remand in order that the matter be referred to the proper authority.

       SRS argues, however, that the parents have the burden of showing that
  the ICWA applies and that they failed to meet that burden.  We disagree. 
  As stated in In re M.C.P., the tribes are in a better position than the
  parents, the agency, or the court to determine potential membership, and
  the court should defer to that expertise.  153 Vt. at 285-86, 571 A.2d  at
  633. In fact, the BIA declined to define "member of a tribe" when
  promulgating regulations to implement the ICWA, noting that the term is
  defined by tribal law or tribal custom.  44 Fed. Reg. 45,096, 45,100
  (1979).  It is impossible for a tribe to determine whether a child is a
  tribal member or eligible for membership if it never receives notice of the
  proceeding.  Only after notice has been provided and a tribe has failed to
  respond or has intervened but is unable to determine the child's
  eligibility for membership does the burden shift to the parties to show
  that the ICWA still applies.  See In re A.G.-G., 899 P.2d 319, 322 (Colo.
  Ct. App. 1995) (after no tribe responded to notice given to BIA, party
  asserting applicability has burden to show child is "Indian child" under
  ICWA); In re J.L.M., 451 N.W.2d 377, 385, 387 (Neb. 1990) (after

 

  tribe concluded children not eligible for membership, party seeking to
  invoke ICWA has burden to show Act applies).

       SRS does raise a valid concern regarding the difficulty created when
  the only information provided is the father's vague statement that his
  father was "full-blooded Mohican."  The ICWA applies only to Indian tribes
  or nations that are recognized as eligible for services provided by the
  BIA.  25 U.S.C. § 1903(8).  Here, the father asserts that "Mohican" is the
  same as Mohegan, a tribe recognized by the BIA for purposes of the ICWA. 
  60 Fed. Reg. 9250, 9252 (1995).  In fact, authorities split over whether
  Mohican is an alternate spelling of Mohegan, a tribe to which the ICWA
  applies, or Mahican, a tribe not recognized by the BIA and therefore not
  under ICWA jurisdiction.  Compare C. Waldman, Encyclopedia of Native
  American Tribes 142 (1988) (Mohegan:  "a famous tribe . . . because of the
  novel The Last of the Mohicans") with 18 Encyclopedia Americana 118 (1989)
  (Mahican:  "They are the tribe about whom James Fenimore Cooper wrote The
  Last of the Mohicans.").

       Fortunately the courts are not required to become experts in tribal
  genealogy.  "If the identity or location of the Indian parents . . . or the
  child's tribe cannot be determined, notice of the pendency of any
  involuntary child custody proceeding . . . in a state court shall be sent .
  . . to the appropriate [BIA] Area Director . . . ."  25 C.F.R. § 23.11(b)
  (1996) (emphasis added).  The regulations provide specific guidance on
  where notice should be sent for proceedings in Vermont, id. § 23.11(c)(1),
  and what information should be included in the notice, id. § 23.11(d). 
  Upon receipt of notice, the BIA must make "reasonable documented efforts"
  to locate and notify the tribe of the proceeding within fifteen days.  Id.
  § 23.11(f).  The court erred in failing to provide such notice to the BIA.

       The mother argues the court's failure to provide notice under the ICWA
  requires reversal of the termination order.  We disagree.  Such a remedy is
  not warranted where the only error is failure to provide notice and there
  is no strong showing that the ICWA applies.  In re M.C.P., 153 Vt. at 289,
  571 A.2d  at 635.  Therefore, the case is remanded to the trial court for
  notice

 

  to be given to the BIA.  If no tribe is located, or a tribe is located but
  fails to respond, or the appropriate tribe determines that the children are
  not eligible for tribal membership, the original order will stand.  If a
  recognized tribe does conclude that the children meet the ICWA definition,
  further proceedings consistent with the requirements of the ICWA will be
  necessary.

       Remanded to the family court for notice to be given to the Bureau of
  Indian Affairs in accordance with the Indian Child Welfare Act and for
  proceedings not inconsistent with this opinion.  If no tribe seeks to
  intervene or if, after intervention, the ICWA is found to not apply, the
  order terminating parental rights to J.T. and C.T. is affirmed.  If a tribe
  does respond and determines that the children qualify as Indian children
  under the ICWA, then the termination order and the merits (CHINS) order are
  vacated, and further proceedings consistent with the Act will be necessary.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



------------------------------------------------------------------------------
                                 Dissenting


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 96-051


In re J.T. and C.T.                               Supreme Court

                                                  On Appeal from
                                                  Caledonia Family Court

                                                  June Term, 1996


Alan W. Cook, J.

       Charles S. Martin of Martin & Paolini, Barre, for appellant mother

       Michael Rose, St. Albans, for appellant-father

       Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O.
  Duane, Assistant Attorney General, Waterbury, for appellee Department of
  Social and Rehabilitation Services

       Robert Appel, Defender General, and Henry Hinton, Appellate Defender,
  Montpelier, for appellees juveniles


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



       MORSE, J., dissenting.   I concur in the affirmance, but I dissent
  that it be conditional on giving notice to the Bureau of Indian Affairs.

       The sole basis for this Court to conclude that such notice is required
  under the Indian Child Welfare Act (Act) is a passing observation in a
  clinical psychologist's report (referred to in the trial record as the
  "Cone report") that father told the clinician he was the son of a "full-
  blooded Mohican."  While the Court acknowledges that this brief reference
  appears in the middle of a sixty-page psychiatric evaluation of the family
  in question, this does not adequately place the matter in context. 
  Department of Social and Rehabilitation Services (SRS) involvement with
  this family began in 1989.  During the six-year period preceding the
  parental termination action, both parents underwent extensive and continual
  evaluations and counseling, generating numerous disposition reports, case
  plans, and psychological assessments.  Many of these were

 

  introduced into evidence.  As the trial court observed, the parents "have
  been exposed to just about every type of parental development program
  reasonably available in the area. . . . Therefore, the record contains
  detailed chronicles of the efforts of the [parents] . . . to improve
  parenting and other skills."   Yet, with the sole exception of the
  statement in the Cone report referred to above, nothing -- not a single
  word or reference -- appears anywhere in the trial exhibits or testimony
  concerning anything even remotely related to Native Americans.  No witness
  testifying under oath, no affidavit by any interested party, no attorney,
  no social worker familiar with the family, made even the slightest allusion
  to a possible Indian connection, much less to the possibility that an
  Indian child was involved in the matter.

       All that appears in the record is a hearsay statement by the father in
  the report of a psychologist who had no previous counseling experience with
  the family, and thus no basis whatsoever to evaluate the statement's
  credibility.  Despite her unfamiliarity with the case, however, the
  psychologist observed substantial "discrepancies between [father's]
  accounts and those of others."  She noted, for example, that "his
  description of his childhood given to this evaluator was markedly different
  from what he reported" to another clinician.  "Thus," she concluded,
  "[father] may not be an entirely reliable informant."

       This, then, is the sole evidentiary basis of the Court's holding: an
  isolated hearsay statement made to a single clinician unfamiliar with the
  family but sufficiently aware of discrepancies in father's account of his
  childhood to warn that he "may not be an entirely reliable informant," a
  statement that finds not even a whisper of corroboration in other
  evaluations by social workers who had worked with the family during its six
  years of involvement with SRS, a statement utterly ignored by trial
  counsel, and unconfirmed by the one person in the best position to know its
  reliability -- the declarant.  This is the evidence, in the Court's
  considered judgment, that should have provided the trial court with "reason
  to know that an Indian child [was] involved" and thus trigger the federal
  law's notice requirement.  25 U.S.C. § 1912(a) (1988 & Supp. II 1990).  And
  this is the basis, finally, for the Court's conclusion that

 

  the order terminating parental rights -- an order supported by overwhelming
  evidence of physical and sexual abuse of the minor children --  must be
  indefinitely delayed, along with all hope of a favorable adoption, while
  the matter wends its way through the federal bureaucracy.(FN1)

       To credit an argument of such obvious insignificance, particularly
  when it was never raised below notwithstanding the fact that father was an
  active litigant, defies reason.  If there were any possibility of truth to
  the reference, surely father or his attorney would have referred to it at
  some stage of the litigation.  And even if he and all of the lawyers in
  this case were unaware of the legal significance of a parent of Indian
  heritage, surely that fact -- if it was a fact --  would have been
  mentioned somewhere else in the "detailed chronicles" of the parents' six-
  year involvement with SRS.

       The real tragedy of today's decision is the open-ended delay to
  establishing a permanent and stable home for these abused children.  The
  irony is that such delay is totally unnecessary. My research has not
  disclosed a single federal or state decision requiring notice under 25
  U.S.C. § 1912(a) on the basis of evidence of a similar nature.  The seminal
  Vermont decision applying the Act, In re M.C.P., 153 Vt. 275, 571 A.2d 627
  (1989), observed, to be sure, that courts have accorded a "broad reading to
  the obligation to give notice . . . even where it is unclear that the child
  involved is an Indian child."  Id. at 287, 571 A.2d  at 633.  In that case,
  however, the trial court had been "informed on numerous occasions that both
  the juvenile and her adoptive parents [were] of Native American Indian
  origin."  Id. at 284, 571 A.2d  at 632.  Furthermore, the juvenile's father
  himself had testified that he was a full blooded Mohawk Indian.  Id.  The
  facts here, as summarized above, could not be less similar.  The cases on
  which M.C.P. relied

 

  are equally distinguishable.  In re H.D., 729 P.2d 1234 (Kan. Ct. App.
  1986) was a termination-of-parental rights case in which the mother
  testified that she was 15/32 Indian blood of the Cherokee tribe.  Id. at
  1236.  The Kansas court held that the undisputed evidence of the mother's
  heritage was sufficient proof of the children's Indian descent to raise the
  notice requirement of the Act.  Id. at 1239.  The facts were similar in In
  re Junious M., 193 Cal. Rptr. 40 (Cal. Ct. App. 1983), where counsel for
  the mother raised the Act with the trial court, and the mother testified
  that she was a member of an Indian tribe.  Id. at 42-43.   Under the
  circumstances, the Court of Appeal held that notice to the tribe was
  required.  Id. at 43-44. Finally, in In re Colnar, 757 P.2d 534 (Wash. Ct.
  App. 1988), the mother's attorney raised the issue with the trial court as
  to whether the Act should apply and the mother testified that she was
  one-quarter Apache Indian.  Id. at 535.  The court held that this claim was
  sufficient to require the trial court to give notice to the Apache tribe,
  even though the applicable state agency had filed an affidavit stating that
  a state investigation showed the child to not be eligible for membership. 
  Id.

       As these and other cases demonstrate, the courts have accorded a broad
  but sensible interpretation of what constitutes "reasonable grounds,"
  Colnar, 757 P.2d  at 536, under § 1912(a) to "know [] or ha[ve] reason to
  know that an Indian child is involved."  25 U.S.C. § 1912(a).  Until today,
  none has ever applied the notice requirement absent some affirmative effort
  by the parties to invoke the Act.  Even the very liberal nonbinding
  "Guidelines for State Courts; Indian Child Custom Proceedings," on which
  the Court places so much reliance, leave ample room for reasonable
  judgments.  One of the circumstances listed in the Guidelines is where a
  child protection service "has discovered information which suggests that
  the child is an Indian child."  44 Fed. Reg. 67,584, 67,586 (1979).  This
  is not, as the Court implies, a mandate for notice upon the mere mention of
  an Indian tribe somewhere in the record, no matter how ephemeral, and
  completely regardless of context.  The dictionary defines "suggest" as
  "[t]o

 

  cause to be present to the mind as an object of thought, an idea to be
  acted upon . . . to propose as an explanation or solution."   17 The Oxford
  English Dictionary 142 (2d ed. 1989).  This implies at least some substance
  to the proposition "suggested,"  some "idea to be acted upon." The isolated
  hearsay reference in the psychiatric report does not rise even to this
  level, much less to the level of a "reason to know that an Indian child
  [was] involved."  25 U.S.C. § 1912(a).

       Plainly the notice issue was an obvious throwaway by appellate counsel
  in light of the record.  Unfortunately, the Court has embraced it.   It is
  a shame the Court does not give equal credence to the trial court's
  comprehensive analysis, which noted the "fears of the children regarding
  the uncertainty of their future," and found that "[p]ermanency is an
  important consideration for these children and . . . should not be delayed
  further."  The Court has needlessly prolonged their ordeal.

       I am authorized to say that Chief Justice Allen joins in this dissent.






                              _______________________________________
                              Associate Justice




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                                  Footnotes




FN1.  The Act purports to place some time limits upon the process.  It
  provides that the Bureau of Indian Affairs shall have fifteen days to give
  notice to the tribe, that no proceeding shall be held until at least ten
  days after receipt of such notice by the tribe, and that the tribe shall,
  upon request, be granted an additional twenty days to prepare for such
  proceeding.  25 U.S.C. § 1912(a).  The federal rules, however, state that
  if the Bureau is unable to verify that the child meets the criteria of an
  Indian child as defined in 25 U.S.C. § 1903, or is unable to locate the
  Indian custodians, it shall so inform the court and "state how much more
  time . . . will be needed."  25 C.F.R. § 23.11(f) (1996).  Given the total
  uncertainty surrounding father's oblique hearsay reference (did he mean
  "Mohican" or "Mahican" or "Mohegan"?) the delay in this case may,
  unfortunately, be substantial.