December 01, 2014

Best Interests of Child Was Incorrect Standard for Denying Transfer to Tribal Court

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Dep’t of Social Servs. v. Nunnally, 2014 WL 5510487 (Va.).

Where parents and tribe requested transfer to tribal court under the Indian Child Welfare Act (ICWA), trial court erred in denying transfer partly due to concerns about removal of the children from their current foster home. The low standard of best interests did not meet ICWA’s standards.

After the children were removed from their parents and placed temporarily with relatives, the parents were offered a reunification plan. When they did not comply with it, the children were placed in custody of the child welfare agency.

The mother was a member of the Citizen Potawatomi Nation, a federally recognized tribe in Oklahoma. The father was not part of any tribe. It was undisputed that the children were eligible members of the tribe and the ICWA applied. 

Seven months after the children were removed, the agency filed to terminate the parents’ rights. The tribe filed a motion to intervene and, alternatively, a motion to transfer the case to tribal court. 

The district court initially denied the petitions to terminate parental rights due to the lack of a qualified expert witness. The agency and GAL appealed to the circuit court. There, the tribe renewed its motions and the parents also filed motions to transfer the case to the tribal court.

The circuit court found good cause to deny the transfer. It found the case was at an advanced stage where transfer was inappropriate. It also found that litigating the case in tribal court would cause undue hardship for the parties. Finally, it found removing the children from their current foster home would be extremely harmful. 

After denying the motions to transfer, the circuit court terminated the parents’ rights. 

The parents appealed to the Virginia Court of Appeals. In an unpublished opinion, the Court of Appeals reversed the trial court. It found it had relied on an incorrect ‘best interest’ determination in finding good cause.

The Virginia Supreme Court agreed with the Court of Appeals that a transfer should be denied only upon a heightened showing that “immediate serious emotional or physical harm, or a substantial risk of such harm” would result from transfer. Given the above, the Virginia Supreme Court affirmed the Court of Appeals.

Justice Millette’s opinion, partially concurring and dissenting, also provided some insight on the issues at stake. While the opinion agreed the denial of transfer was inappropriate, it disagreed with the majority’s reasoning.

First, the justice noted the relevant portion of the ICWA provides for “concurrent but presumptively tribal jurisdiction in the case of [Indian] children not domiciled on the reservation.” 

Transfers under that section are to be made to tribal court upon request of a parent, Indian custodian, or tribe. Such transfers are permitted provided neither parent objects, the tribe does not decline jurisdiction, or there is no “good cause to the contrary.” 

The justice wrote that section 1911(b) is purely jurisdictional, it only allows the state court to decide which court should make decisions about the case. Any type of best interest, even a more stringent one, is inappropriate and goes to substantive issues in the case. The act of transferring a case to another court cannot, in and of itself, cause harm to the child. Absent evidence of bias, the state court must presume the tribal court competent and impartial. For example, whether a tribal court might change the child’s placement, is a decision made after a transfer, if at all.