February 01, 2015

Transfer to Tribal Court Was Properly Denied Due to Delay in Request for Transfer

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.

In re S.B.C., 2014 WL 7403958 (Mont.). 


Where tribe waited for over a year to ask for transfer of case to tribal court and child’s case was close to termination and adoption in the only home he knew, good cause existed to deny transfer of the case. Also, qualified expert witness was not required for termination where father never had custody per Adoptive Couple v. Baby Girl. 

A child came to the attention of child protective services (CPS) when law enforcement notified CPS of the older sibling wandering in the streets naked. Both children had been left unsupervised by their mother. Their father, an enrolled member of the Blackfeet tribe, knew of the removal, but did not seek custody of his child. 

The state agency placed the children back with the mother briefly in a shelter, but she left because they had rules she refused to follow. She was later arrested for her fourth DUI. The agency again asked the father to take custody of his child, but he declined. He also questioned his paternity. The agency set up appointments for him to get tested. He missed the appointments. 

The child was placed with several foster parents and eventually the agency found a Native American foster parent. 

The father was then ordered by the court to submit to paternity testing. The test confirmed he was the father. He did not seek visitation or request to have custody for nine months after paternity was confirmed. 

The Blackfeet tribe intervened and approved the placement of the child. 

The initial plan was for reunification with the mother. She completed some services but was asked to leave a treatment center for rule violations. The agency moved to terminate her parental rights. 

The tribe then moved to transfer jurisdiction to the Blackfeet tribal court. It also indicated it supported placement with the father, whom they believed could care for the child with his mother’s assistance. The tribe indicated its laws and customs opposed terminating parental rights. Further, it questioned the ability of the foster mother to adequately provide for the child due to differences in her tribe and Blackfeet tribal cultures. 

The trial court denied the transfer. It noted the request was made after the child had been in the current foster home for 547 days, the foster mother’s home was the only home he knew, and that adoption was imminent. Accordingly, it found good cause to deny transfer. 

The court terminated both parents’ rights and the parents and tribe appealed. 

The Montana Supreme Court affirmed. On appeal, the Montana Supreme Court first reviewed exclusive and transfer jurisdiction provisions under the Indian Child Welfare Act (ICWA). For the latter, tribes have presumptive jurisdiction when Indian children do not reside on tribal lands. This can be overcome by a showing of good cause to the contrary. Under state precedent, the courts follow a jurisdictional best interests test, which differs from best interests findings in other contexts. Here, the state must show by clear and convincing evidence that a child’s best interests will be injured by transfer. 

There was no apparent reason why the tribe waited to request transfer. At the beginning of the case, when the tribe intervened, there was a concurrent plan of adoption and the father was not cooperating with his plan. The child was placed much earlier in a foster home with a member of a different tribe. Further, the testimony at trial indicated it would be traumatic for the child to leave that home. It was the only one he remembered at that point. 

The tribe also asserted on appeal that the court improperly relied on financial issues of the tribe in denying transfer. The Supreme Court found the trial court made unnecessary and inappropriate comments including that the tribe “chose to sit on its hands and delay seeking jurisdiction over [the child] for tribal financial reasons,” and that the tribe considers its children sacred “only when it is in its best financial interests to do so.” However, the court noted, none of these comments directly questioned the ability of the tribal court to make sound decisions, so they were insufficient to overturn the order.

Given the above, the trial court did not err in denying transfer to the Blackfeet court. 

Next the court considered the father’s argument that the termination was invalid because the court did not hear from a qualified expert witness per ICWA section 1912(f). A qualified expert witness must testify regarding whether continued custody of the child by the parent would result in serious harm. Relying on the U.S. Supreme Court case Adoptive Couple v. Baby Girl, the trial court had found the section did not apply because the father had never had custody of the child. The Montana Supreme Court agreed. 

Finally, the court considered the evidence regarding the mother to support terminating her parental rights. The mother failed to complete treatment programs or remain substance free well beyond the statutory timeframes, despite a trial placement with her and other efforts. In fact, the mother was not present at the termination trial and her whereabouts were unknown. 

The Montana Supreme Court held the trial court properly terminated both parents’ rights.