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November 01, 2016

ICWA Does Not Permit Transfer of State Adoption Proceedings to Tribal Court after Termination of Parental Rights

Emily Peeler

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.

Gila River Indian Community v. Dep’t of Child Safety, 2016 WL 4249676 (Ariz. Ct. App.).

The plain language of the Indian Child Welfare Act (ICWA) does not allow for the transfer of state preadoptive and adoptive placement proceedings to a tribal court after parental rights are terminated. 

A child was removed from mother’s care one week after birth when the child and mother tested positive for amphetamines and opiates. The child welfare agency filed a dependency petition. The Gila River Indian Community (Community) was notified of the proceedings and granted a motion to intervene. The Community continued to be involved in the case and received notice of the child welfare agency’s motion to terminate parental rights. 

The court terminated the parents’ rights and found the child’s foster parents to be an adoptive placement that met all the child’s needs, including arrangements to continue the child’s exposure to the Community’s culture. The Community did not provide the court an alternative placement and agreed there was good cause to deviate from ICWA placement preferences. 

There was no objection or appeal filed by the Community challenging termination of parental rights. The foster parents moved to intervene. The Community requested time to respond, but did not file a response. The foster parents were granted a motion to intervene and filed for adoption, which is when the Community requested and was granted a motion to halt the proceedings. The Community then moved to transfer the proceedings to their children’s court based on 25 U.S.C. § 1911(b). The juvenile court considered the convenience of the children’s court, the child’s bonding with the foster family, and the impact of a potential placement change and denied the motion to transfer the case. The Community appealed. 

The plain language of a statute is the best evidence of legislative intent. In this case, the plain language of the ICWA statute says “state court proceedings are required to be transferred to tribal jurisdiction where ‘foster care placement’ or ‘termination of parental rights’ is the matter at issue.” ICWA defines “foster care placement” as specifically including “where parental rights have not been terminated.” ICWA also defines “termination of parental rights.” Therefore, the statute’s definitions only allow a transfer before termination of parental rights. 

Other state courts have interpreted this ICWA statute similarly. Looking at the statute as a whole, the Minnesota Supreme Court did not expand allowable transfers to preadoptive and adoptive proceedings for § 1911(b) because ICWA specifically used a term including preadoptive and adoptive proceedings in § 1911(a), but did not include those proceedings in their §1911(b) terms. Additionally, the Court of Appeals of Virginia decided that ICWA allows transfer to tribal courts in only foster care placement and termination of parental rights proceedings. 

The Community filed a motion to transfer based solely on § 1911(b). The timing of the motion was after parental rights had been terminated, legal custody was with the child welfare agency, and the foster parents were an adoptive placement. The court affirmed the lower court’s denial of the Community’s motion to transfer the proceedings to a tribal court because ICWA does not allow transfer of this type of proceeding.