Minh-Sang Nguyen v. Fairfax County Department of Family Services ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and McCullough
PUBLISHED
Argued at Richmond, Virginia
TYRUS H. THOMPSON AND
JA’REE C. THOMPSON
v. Record No. 2185-12-4
FAIRFAX COUNTY DEPARTMENT OF FAMILY SERVICES,
MINH-SANG NGUYEN,
JASMINE VANDERPLAS AND
STANDING ROCK SIOUX TRIBE
JASMINE VANDERPLAS OPINION BY
JUDGE STEPHEN R. McCULLOUGH
v. Record No. 2216-12-4 SEPTEMBER 10, 2013
FAIRFAX COUNTY DEPARTMENT OF FAMILY SERVICES,
MINH-SANG NGUYEN,
STANDING ROCK SIOUX TRIBE,
TYRUS H. THOMPSON AND JA’REE C. THOMPSON
MINH-SANG NGUYEN
v. Record No. 2217-12-4
FAIRFAX COUNTY DEPARTMENT OF FAMILY SERVICES
NANCY J. MARTIN, AS GUARDIAN AD LITEM
FOR THE MINOR CHILD
v. Record No. 2232-12-4
FAIRFAX COUNTY DEPARTMENT OF FAMILY SERVICES,
MINH-SANG NGUYEN,
JASMINE VANDERPLAS,
STANDING ROCK SIOUX TRIBE,
TYRUS H. THOMPSON AND JA’REE C. THOMPSON
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Randy I. Bellows, Judge
Dontaé L. Bugg (Bianchi & Bugg, PLLC, on briefs), for Jasmine
Vanderplas.
Michael S. Arif (Darlene R. Langley; Arif & Associates, on
briefs), for Minh-Sang Nguyen.
Nancy J. Martin, Guardian ad litem for the minor child.
Constantinos DePountis (Daniel B. Schy; Staff Attorney, Standing
Rock Sioux Tribe; Law Offices of Derek P. Richmond, on brief),
for appellee Standing Rock Sioux Tribe.
Mark D. Fiddler (Robert H. Klima; Fiddler Law Office, P.A., on
brief), for Tyrus H. Thompson and Ja’Ree C. Thompson appearing
as amicus curiae.
No brief or argument for appellee Fairfax County Department of
Family Services.
The Indian Child Welfare Act (ICWA) provides, with regard to a termination of parental
rights case involving an Indian child not domiciled on a reservation under 25 U.S.C. § 1911(a), that
state courts “shall transfer” the case to a tribal court unless the court finds “good cause to the
contrary.” 25 U.S.C. § 1911(b). The trial court held that the guardian ad litem and the foster
parents of B.N., an Indian child, had not established good cause to retain jurisdiction. The court,
therefore, ordered the case transferred to the Standing Rock Sioux tribal court in North Dakota. The
guardian ad litem and the foster parents appeal this decision. For their part, B.N.’s parents appeal
the order granting a stay pending appeal. For the reasons noted below, we reverse and remand for
further proceedings.
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BACKGROUND
Jasmine Vanderplas, also known as Jasmine Thundershield,1 gave birth to B.N. in July
2010. Vanderplas is one-half Sioux. B.N.’s father, Minh-Sang Nguyen, is wholly of Vietnamese
descent. The Standing Rock Sioux Tribe has enrolled B.N. as a member of the Tribe. The Bureau
of Indian Affairs of the United States Department of the Interior issued a “Certified Degree of
Indian Blood” for B.N., finding that she has a “total Sioux blood quantum [of] 1/4.”
Both Vanderplas and Nguyen have abused alcohol and drugs. They also have been
convicted of a number of crimes. The Fairfax County Department of Family Services initiated a
variety of steps designed to protect B.N.: a preliminary protective order, a foster care placement on
April 11, 2011, and, ultimately, a petition to terminate the parental rights of both parents. B.N. has
not lived with either parent since April 8, 2011, when she was nine months old. It is undisputed that
she has resided in Fairfax County since her birth. By orders dated May 3, 2012, the Juvenile and
Domestic Relations District Court of Fairfax County (J&DR court) terminated Nguyen’s and
Vanderplas’s residual parental rights. Nguyen and Vanderplas appealed the orders to the circuit
court.
The County repeatedly sought to keep the Tribe informed of developments in the case. The
Tribe participated in the April 15, 2011 hearing by telephone. On May 2, 2011, the County wrote to
a representative of the Tribe, Terrance Yellow Fat, enclosed a copy of the preliminary removal
order entered by the court on April 15, 2011, and informed the representative of the Tribe’s right to
intervene in the pending foster care proceedings. Next, on May 10, 2011, the County mailed a copy
of the adjudicatory order to the tribal representative and informed him that a dispositional hearing
was scheduled for June 10, 2011. As the case proceeded through the J&DR court, the County
1
Throughout this opinion, we employ the surname Vanderplas, the name predominantly
employed in the trial record.
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continued to notify the Tribe, by registered mail, of the adjudicatory hearing, the dispositional
hearing, and hearings on the Department’s petitions for permanency planning. Fairfax County
attempted to contact Mr. Yellow Fat by telephone and by sending him a letter by certified mail,
dated April 4, 2012, informing him of the upcoming court hearing scheduled for May 3, 2012, in
J&DR court. On June 19, 2012, the County mailed another certified letter to the tribal
representative to inform him of the scheduled hearing for the termination of parental rights and
informing him of the Tribe’s right to intervene. The letter further stated that the hearing to
terminate parental rights was scheduled for August 6, 2012, in the Fairfax County Circuit Court.
Initially, on August 1, 2012, the Tribe filed a motion to intervene in the J&DR court. By
then, however, the case was pending in circuit court.2 The circuit court granted the parties’ motion
to continue the trial date from August 6, 2012, to September 11, 2012 and again to September 12,
2012. On September 7, 2012, the Standing Rock Sioux Tribe filed a motion to intervene in the
circuit court, which the court granted the same day it was filed. Relying on ICWA, the Tribe also
moved on September 10, 2012, to transfer jurisdiction of the case to the Tribe’s court. The Tribe is
located in North Dakota, approximately 1600 miles from Fairfax County. B.N.’s parents supported
the motion to transfer. Fairfax County and B.N.’s guardian ad litem, however, opposed the motion
to transfer.
The County argued transfer was not appropriate because (1) the proceedings were at an
advanced stage and the Tribe failed to promptly petition for transfer of jurisdiction; (2) the evidence
necessary to decide the case could not be adequately presented in the tribal court without undue
hardship to the Department and its witnesses; and (3) the transfer would harm B.N. B.N.’s guardian
ad litem also relied on these grounds and raised two additional arguments: the Existing Indian
2
The County informed the Tribe, in a letter dated August 22, 2012, of the need to intervene
in the circuit court rather than in the J&DR court.
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Family Exception precludes application of ICWA on these facts, and application of ICWA in this
case would be unconstitutional.
The circuit court found, without objection, that B.N. is an Indian child for purposes of
ICWA. The court rejected each of the grounds advanced for a finding of good cause to deny
transfer. The court held that the proceedings were not at an advanced stage because the Tribe
presented its motion to transfer before the de novo trial on the termination of parental rights.
Moreover, the court noted that the parents had not been notified of their independent right to request
transfer and held that they were prejudiced by this lack of notice. As to the inconvenience to the
parties, the court held that modern technology, such as video conferencing, means that there would
be no undue hardship for the case to proceed in North Dakota. Counsel for the Tribe stated that
participation by video or telephone is “commonplace” and could be set up “with ease.” The court
concluded that the best interests of the child was not an appropriate consideration in determining
whether to transfer the case to a tribal court. Finally, the court held that the statute was not
unconstitutional on its face or as applied.
The guardian ad litem filed an emergency motion and a request to stay the court’s order
pending appeal. B.N.’s foster parents filed a motion to reconsider the trial court’s transfer decision,
which the guardian ad litem joined. In addition to the arguments previously raised, the foster
parents contended that good cause existed to refuse transfer because the Fairfax County Circuit
Court was the only court with jurisdiction over both parents. B.N.’s father is not a member of the
Tribe and, therefore, the foster parents argued the tribal court could not adjudicate his termination of
parental rights case.
The circuit court denied the motion to reconsider. After hearing testimony, the court granted
the motion to stay the order to transfer, pending appeal. Regarding the stay, the court relied on
testimony from a number of witnesses that it found “very, very compelling.” In particular, the court
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heard testimony from a psychotherapist, who testified that removing B.N. from her present
environment would prove “catastrophic” due to her reactive attachment disorder. A second witness,
a clinical psychologist, likewise concluded that B.N. suffered from reactive attachment disorder and
that a transfer at this time would very likely cause B.N. “irreparable” harm. Finally, the trial court
ruled that the foster parents would be allowed to intervene as a party for purposes of the appeal.
B.N.’s foster parents desire to adopt her. B.N.’s foster parents and the guardian ad litem appeal the
transfer decision, and her biological parents appeal the trial court’s award of a stay.
ANALYSIS
Our first task is to determine the standard of review. Appellate courts in other states have
employed a variety of standards in reviewing the question of whether the trial court properly found
good cause to deny transfer under ICWA. Although courts have employed a variety of
approaches,3 appellate courts most commonly review transfer decisions under an abuse of
discretion standard.4
As the commentary to the guidelines acknowledges, 44 Fed. Reg. 67,591, and as a
number of courts have concluded,5 25 U.S.C. § 1911(b) constitutes a modified version of the
3
See, e.g., Fresno Cnty. Dep’t of Children & Family Servs. v. Sup. Ct, 19 Cal. Rptr. 3rd
155, 167 (Cal. Ct. App. 2004) (“[T]he substantial evidence test is a more appropriate standard
[than abuse of discretion] to apply in reviewing the juvenile court’s good cause determination.”);
Dep’t of Human Servs. v. Three Affiliated Tribes of Fort Berthold Reservation (In re K.R.C.),
238 P.3d 40, 49-50 (Or. Ct. App. 2010) (employing a de novo standard).
4
See In re Appeal in Maricopa Cnty. Juv. Action No. JS-8287, 828 P.2d 1245, 1248
(Ariz. Ct. App. 1991); People ex rel. A.T.W.S., 899 P.2d 223, 225, 227 (Colo. App. 1994); In re
Adoption of T.R.M., 525 N.E.2d 298, 308 (Ind. 1988); In re Welfare of Children of R.M.B., 735
N.W.2d 348, 351 (Minn. Ct. App. 2007); State v. Elise M. (In re Zylena R.), 825 N.W.2d 173,
178 (Neb. 2012); In re Laurie R., 760 P.2d 1295, 1299 (N.M. Ct. App. 1988); Yavapai-Apache
Tribe v. Mejia, 906 S.W.2d 152, 163, 168 (Tex. App. 1995); Dep’t of Soc. & Health Servs. v.
Priscilla S. (In re Dependency of E.S.), 964 P.2d 404, 408 (Wash. Ct. App. 1998).
5
Ex parte C.L.J., 946 So. 2d 880, 887-88 (Ala. Civ. App. 2006); Chester Cnty. Dep’t of
Soc. Servs. v. Coleman, 399 S.E.2d 773, 775 (S.C. 1990); In re Adoption of S.S., 657 N.E.2d
935, 943 (Ill. 1995); In re C.E.H., 837 S.W.2d 947, 953-54 (Mo. Ct. App. 1992); In re Melaya F.,
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forum non conveniens doctrine. From its inception, the forum non conveniens doctrine has
allowed state and federal trial courts a measure of discretion in selecting an appropriate forum.
See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 511-12 (1947) (recognizing the doctrine
for federal courts and applying an abuse of discretion standard). The current forum non
conveniens statute, 28 U.S.C. § 1404, was enacted in 1948.6 Under this statute, a district court’s
decision to transfer a case is also reviewed for an abuse of discretion. Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 28-29 (1988).
We conclude that an abuse of discretion standard constitutes the appropriate standard of
review for transfer decisions made by trial courts under 25 U.S.C. § 1911(b). This “‘standard
requires a reviewing court to show enough deference to a primary decisionmaker’s judgment that
the court does not reverse merely because it would have come to a different result in the first
instance.’” Lawlor v. Commonwealth, 285 Va. 187, 212, 738 S.E.2d 847, 861 (2013) (quoting
Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 322 (4th Cir. 2008)). As the
Supreme Court of Virginia has recognized, however, “the law often circumscribes the range of
choice available to a court in the exercise of its discretion.” Id. at 213, 738 S.E.2d at 861.
Among other things, “[t]he abuse-of-discretion standard includes review to determine that the
discretion was not guided by erroneous legal conclusions.” Id. (citations omitted).7
810 N.W.2d 429, 434 (Neb. Ct. App. 2011); State ex rel. Human Servs. Dept. v. Wayne R.N. (In
re Term. of Parental Rights of Wayne R.N.), 757 P.2d 1333, 1336 (N.M. Ct. App. 1988); People
ex rel. J.J., 454 N.W.2d 317, 330 (S.D. 1990); Yavapai-Apache Tribe, 906 S.W.2d at 165-66.
6
Act of June 25, 1948, ch. 646, 62 Stat. 937.
7
The Tribe questions whether the Thompsons, as B.N.’s foster parents, constitute an
“aggrieved party” under Code § 17.1-405. After careful consideration of the thoughtful briefs filed
by the parties, we conclude that it is not necessary for us to decide the issue on these facts.
Significantly, the brief of the guardian ad litem includes all of the assignments of error raised in the
foster parents’ brief. Therefore, the foster parents are not asking this Court to consider any issues
beyond those raised by the guardian ad litem. The Thompsons have asked us to treat their briefs as
amicus briefs in the event that they are not deemed proper “aggrieved parties.” Whether the
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I. OVERVIEW OF ICWA
“The Indian Child Welfare Act of 1978 . . ., 92 Stat. 3069, 25 U.S.C. §§ 1901-1963, was
the product of rising concern in the mid-1970’s over the consequences to Indian children, Indian
families, and Indian tribes of abusive child welfare practices that resulted in the separation of
large numbers of Indian children from their families and tribes through adoption or foster care
placement, usually in non-Indian homes.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S.
30, 32 (1989). Congress found that “an alarmingly high percentage of Indian families [were
being] broken up by the removal, often unwarranted, of their children from them by nontribal
public and private agencies.” 25 U.S.C. § 1901(4). Congress enacted ICWA in response to the
“wholesale removal of Indian children from their homes.” Holyfield, 490 U.S. at 32.
In its preliminary statement of findings, Congress expressed the importance of protecting
and preserving Indian families, Indian tribes, and tribal culture, stating the following:
(3) that there is no resource that is more vital to the
continued existence and integrity of Indian tribes than their
children . . . ;
(4) that an alarmingly high percentage of Indian families
are broken up by the removal, often unwarranted, of their children
from them by nontribal public and private agencies and that an
alarmingly high percentage of such children are placed in
non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction
over Indian child custody proceedings through administrative and
judicial bodies, have often failed to recognize the essential tribal
relations of Indian people and the cultural and social standards
prevailing in Indian communities and families.
25 U.S.C. § 1901.
Thompsons appear before us as aggrieved parties or as amici would not preclude us from
considering their arguments. Moreover, the case would proceed based on the appeal filed by the
guardian ad litem. Stanley v. Fairfax DSS, 242 Va. 60, 64, 405 S.E.2d 621, 623 (1991). Therefore,
rather than issue what would be akin to an advisory opinion, we assume for purposes of this appeal
that the Thompsons are not aggrieved parties under Code § 17.1-405, and we consider the
arguments presented in their brief as those of an amicus.
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Congress declared that the policy of our Nation is
to protect the best interests of Indian children and to promote the
stability and security of Indian tribes and families by the
establishment of minimum Federal standards for the removal of
Indian children from their families and the placement of such
children in foster or adoptive homes which will reflect the unique
values of Indian culture . . . .
25 U.S.C. § 1902. ICWA thus recognizes the separate tribal interest in children who are
members of a tribe, or who are eligible for membership in a tribe. The term “Indian child” is
defined in 25 U.S.C. § 1903(4) 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.” There is no dispute that B.N. is a member of
the Standing Rock Sioux Tribe, a federally recognized “Indian tribe” within the meaning of
ICWA.8
ICWA establishes a number of procedural protections for cases involving Indian children.
As relevant here, the parent or custodian of the Indian child, as well as the tribe, are entitled to
notice by registered mail with return receipt requested of “any involuntary proceeding in a State
court, where the court knows or has reason to know that an Indian child is involved.” 25 U.S.C.
§ 1912. The notice must inform the recipients of the pending proceedings and of their right to
intervene. Id. The statute further provides that
[i]f the identity or location of the parent or Indian custodian and
the tribe cannot be determined, such notice shall be given to the
Secretary [of the Interior] in like manner, who shall have fifteen
days after receipt to provide the requisite notice to the parent or
Indian custodian and the tribe. No foster care placement or
8
See 25 U.S.C. § 1903(8) (defining “Indian tribe” as “any Indian tribe, band, nation, or
other organized group or community of Indians recognized as eligible for the services provided
to Indians by the Secretary [of the Interior] because of their status as Indians”). Federally
recognized tribes are identified in the Federal Register. 25 U.S.C. § 479a; 25 U.S.C. § 479a-1.
See 77 Fed. Reg. 47,868, 47,871 (Aug. 10, 2012) (listing the Standing Rock Sioux Tribe of
North & South Dakota as a federally recognized tribe).
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termination of parental rights proceeding shall be held until at least
ten days after receipt of notice by the parent or Indian custodian
and the tribe or the Secretary: Provided, That the parent or Indian
custodian or the tribe shall, upon request, be granted up to twenty
additional days to prepare for such proceeding.
Id.We also note that ICWA contains an enforcement provision, which states that
[a]ny Indian child who is the subject of any action for foster care
placement or termination of parental rights under State law, any
parent or Indian custodian from whose custody such child was
removed, and the Indian child’s tribe may petition any court of
competent jurisdiction to invalidate such action upon a showing
that such action violated any provision of [25 U.S.C. §§ 1911,
1912, or 1913].
25 U.S.C. § 1914.9If an Indian child “resides or is domiciled within the reservation of such tribe” or is a
“ward of a tribal court,” the child’s tribe has exclusive jurisdiction “over any child custody
proceeding” involving the child. 25 U.S.C. § 1911(a).10 If an Indian child is not domiciled on or
a resident of a tribal reservation, or if the child is not a ward of the tribe, the state court must
9
Additional protections afforded by ICWA in proceedings involving Indian children
include the appointment of counsel, 25 U.S.C. § 1912(b); the duty to show that “active efforts
have been made to provide remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family” in foster care placement or termination of parental rights
proceedings, 25 U.S.C. § 1912(d); a “determination, supported by clear and convincing evidence,
including testimony of qualified expert witnesses, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional or physical damage to the child”
in foster care placement proceedings, 25 U.S.C. § 1912(e); a “determination, supported by
evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the
continued custody of the child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child” in termination of parental rights proceedings, 25
U.S.C. § 1912(f); and adoptive, preadoptive, and foster care placement preferences, 25 U.S.C.
§ 1915.
10
“Foster care placement” means “any action removing an Indian child from its parent or
Indian custodian for temporary placement in a foster home or institution or the home of a
guardian or conservator where the parent or Indian custodian cannot have the child returned upon
demand, but where parental rights have not been terminated.” 25 U.S.C. § 1903(1)(i).
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transfer the case to a tribal court unless (a) either parent objects, (b) the tribal court declines the
transfer, or (c) the state court makes a finding of “good cause to the contrary.” 25 U.S.C.
§ 1911(b). The statute does not define “good cause.” In addition, the tribe and any Indian
custodian appointed for the child each have the right to intervene “at any point” in the
“proceeding for the foster care placement of, or termination of parental rights to, an Indian
child.” 25 U.S.C. § 1911(c).
The Bureau of Indian Affairs (BIA) has published guidelines for interpreting and
applying ICWA, with accompanying commentary, in the Federal Register. Guidelines for State
Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584-95 (Nov. 26, 1979). These
guidelines assist state courts in developing the “minimum Federal standards” for proceedings
involving Indian children. 25 U.S.C. § 1902. The guidelines are “not published as regulations
because they are not intended to have binding legislative effect.” 44 Fed. Reg. 67,584; see also
Native Village of Napaimute Traditional Council (In re Adoption of Keith M.W.), 79 P.3d 623,
626 (Alaska 2003) (“Although the [BIA] guidelines are only persuasive and are neither exclusive
nor binding, ‘this court has looked to them for guidance.’” (quoting In re Adoption of F.H., 851
P.2d 1361, 1364 (Alaska 1993))); Puyallup Tribe v. State (In re M.S.), 237 P.3d 161, 167 (Okla.
2010) (“Under the . . . Guidelines . . . ‘good cause’ is defined by a non-exclusive list.”). As the
guidelines themselves recognize, primary responsibility for determining the existence of good
cause to deny transfer rests with state courts. 44 Fed. Reg. 67,584.
The guidelines provide that good cause to refuse transfer to a tribal court may be present
in the following situations:
(i) The proceeding was at an advanced stage when the petition to
transfer was received and the petitioner did not file the petition
promptly after receiving notice of the hearing.
“Termination of parental rights” is defined as “any action resulting in the termination of the
parent-child relationship.” 25 U.S.C. § 1903(1)(ii).
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(ii) The Indian child is over twelve years of age and objects to the
transfer.
(iii) The evidence necessary to decide the case could not be
adequately presented in the tribal court without undue hardship to
the parties or the witnesses.
(iv) The parents of a child over five years of age are not available
and the child has had little or no contact with the child’s tribe or
members of the child’s tribe.
44 Fed. Reg. 67,591, C.3(b).
The guidelines provide, in addition to the requirements specified in the statutory text, that
the notice that must be given to the parents should include, among other things, “[a] statement of
the right of the parents or Indian custodians or the Indian child’s tribe to petition the court to
transfer the proceeding to the Indian child’s tribal court.” 44 Fed. Reg. 67,588, B.5(b)(ix).
II. THE EXISTING INDIAN FAMILY EXCEPTION AND THE CONSTITUTIONALITY OF ICWA
The foster parents and the guardian ad litem contend at the outset that ICWA is
inapplicable due to the Existing Indian Family Exception. They further contend that this
exception is necessary to preserve ICWA’s constitutionality. The Kansas Supreme Court first
recognized this exception in Leatherman v. Yancey (In re Adoption of Baby Boy L.), 643 P.2d
168 (Kan. 1982). Courts recognizing this exception reason that
because the express purpose of Congress was to prevent the culture
shock and underlying emotional trauma inherent in taking children
from an Indian environment and placing them in a non-Indian
environment, the [Act] applies only in those situations where
Indian children are being removed from an existing Indian family.
Rye v. Weasel, 934 S.W.2d 257, 261 (Ky. 1996); see also S.A. v. E.J.P., 571 So. 2d 1187,
1189-90 (Ala. Civ. App. 1990) (where the child “has never been a member of an Indian family,
has never lived in an Indian home, and has never experienced the Indian social and cultural
world,” “[t]o apply the [Act] . . . would be contrary to the congressional intent”). Relying on a
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triad of California cases,11 foster parents and the guardian ad litem further contend that a failure
to recognize the Existing Indian Family Exception raises doubts as to ICWA’s constitutionality,
and they note that statutes should be construed so as to avoid such doubts. See Eaton v. Davis,
176 Va. 330, 339, 10 S.E.2d 893, 897 (1940) (“[A] statute will be construed in such a manner as
to avoid a constitutional question wherever this is possible.”).
We decline to recognize the Existing Indian Family Exception for a number of reasons.
First, the plain text of the statute does not recognize the application of this exception. There is
no threshold requirement in the Act that the child must have been born into or must be living
with an existing Indian family, or that the child must have some particular type of relationship
with the tribe or his or her Indian heritage. “Because Congress has clearly delineated the nature
of the relationship between an Indian child and tribe necessary to trigger application of the Act,
judicial insertion of an additional criterion for applicability is plainly beyond the intent of
Congress and must be rejected.” In re Baby Boy C., 805 N.Y.S.2d 313, 323 (N.Y. App. Div.
2005) (citations omitted).
Second, cases recognizing the exception ignore Congress’s intent “to protect the best
interests of Indian children and to promote the stability and security of Indian tribes and
families.” 25 U.S.C. § 1902 (emphasis added). As the Supreme Court recognized in Holyfield,
“Congress was concerned not solely about the interests of Indian children and families, but also
about the impact on the tribes themselves of the large numbers of Indian children adopted by
non-Indians.” 490 U.S. at 49. The Existing Indian Family Exception takes an unnecessarily
restrictive approach to ICWA, one that would frustrate Congress’s intent to protect tribal
interests.
11
In re Bridget R., 49 Cal. Rptr. 2d 507 (Cal. Ct. App. 1996), In re Santos Y., 112 Cal.
Rptr. 2d 692 (Cal. Ct. App. 2001), and In re Alexandria Y., 53 Cal Rptr. 2d 679 (Cal. Ct. App.
2001).
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Finally, in its findings, Congress stated “that the States . . . have often failed to recognize
the essential tribal relations of Indian people and the cultural and social standards prevailing in
Indian communities and families.” 25 U.S.C. § 1901(5). The Existing Indian Family Exception
requires courts to assess the “Indianness” of a particular Indian child, parent, or family, a
subjective determination that courts “‘are ill-equipped to make.’” Baby Boy C., 805 N.Y.S.2d at
324 (quoting In re Alicia S., 76 Cal. Rptr. 2d 121, 128 (Cal. Ct. App. 1998)). “Since ICWA was
passed, in part, to curtail state authorities from making child custody determinations based on
misconceptions of Indian family life, the [Existing Indian Family] exception, which necessitates
such an inquiry, clearly frustrates this purpose.” Id. (citations omitted).
We thus join the growing chorus of courts that have rejected the Existing Indian Family
Exception. See, e.g., In re Adoption of T.N.F., 781 P.2d 973, 977 (Alaska 1989); Michael J., Jr.
v. Michael J., Sr., 7 P.3d 960, 963-64 (Ariz. Ct. App. 2000); In re N.B., 199 P.3d 16, 20-22
(Colo. App. 2007); Indian Tribe v. Doe (In re Baby Boy Doe), 849 P.2d 925, 927 (Idaho 1993);
Tubridy v. Ironbear (In re Adoption of S.S.), 622 N.E.2d 832, 838-39 (Ill. App. Ct. 1993), rev’d
on other grounds, 657 N.E.2d 935 (Ill. 1995); In re A.J.S., 204 P.3d 543, 551 (Kan. 2009)
(reversing its earlier adoption of the Exception); Dep’t of Soc. Servs. v. Boyd (In re Elliott), 554
N.W.2d 32, 35-36 (Mich. Ct. App. 1996); In re Adoption of Quinn, 845 P.2d 206, 209 n.2 (Or.
Ct. App. 1993); Adoptive Couple v. Baby Girl, 731 S.E.2d 550, 558 n.17 (S.C. 2012), rev’d on
other grounds, 133 S. Ct. 2552 (2013); In re Adoption of Baade, 462 N.W.2d 485, 489-90 (S.D.
1990); D.J.C. v. P.D.C. (State ex rel. interest of D.A.C.), 933 P.2d 993, 999-1000 (Utah Ct. App.
1997).
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The guardian ad litem and the Thompsons contend we must recognize the Existing Indian
Family Exception because, if we do not, ICWA would be subject to constitutional doubt under
the Tenth Amendment.12 The United States Supreme Court has cautioned that although
[s]tatutes should be construed to avoid constitutional
questions . . . this interpretive canon is not a license for the
judiciary to rewrite language enacted by the legislature. Any other
conclusion, while purporting to be an exercise in judicial restraint,
would trench upon the legislative powers vested in Congress by
Article I, § 1, of the Constitution.
Salinas v. United States, 522 U.S. 52, 60-61 (1997) (internal quotation marks and citations
omitted). A proper respect for those powers means that “[s]tatutory construction must begin
with the language employed by Congress and the assumption that the ordinary meaning of that
language accurately expresses the legislative purpose.” Park ’N Fly v. Dollar Park and Fly, Inc.,
469 U.S. 189, 194 (1985). We decline to rewrite ICWA to add an Existing Indian Family
Exception that Congress never provided in the text of the statute.
Finally, the guardian ad litem contends that ICWA is unconstitutional under the Tenth
Amendment. Our Supreme Court has held that “a court will not rule upon the constitutionality
of a statute unless such a determination is absolutely necessary to decide the merits of the case.”
Volkswagen of Am., Inc. v. Smit, 266 Va. 444, 454, 587 S.E.2d 526, 532 (2003). Furthermore,
“[t]he fact that the present case will be remanded and that the constitutional issues may arise
again does not affect our obligation to adhere strictly to this principle.” Id. In light of our
remand, it is not necessary for us to address this question.
12
Mother and father again argue that the guardian ad litem did not preserve this
argument. As we noted above, the guardian ad litem joined in the motion to reconsider filed by
the foster parents, a motion that included these arguments. Therefore, the argument is properly
before us.
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III. DETERMINATION OF GOOD CAUSE
A. The party opposing transfer must establish good cause by clear and convincing evidence.
Before turning to the merits of what constitutes good cause to retain the case in state court,
we must first determine the burden of proof a litigant must shoulder in order to establish good cause.
There is no dispute that the burden to prove good cause falls on the party opposing tribal
jurisdiction. According to the guidelines, “[t]he burden of establishing good cause to the
contrary shall be on the party opposing the transfer.” 44 Fed. Reg. 67, 591, C.3(d); see also
People ex rel. T.I., 707 N.W.2d 826, 834 (S.D. 2005); Hoots v. K.B. (In re Interest of A.B.), 663
N.W.2d 625, 631 (N.D. 2003).
ICWA does not specify the quantum of proof that a party opposing transfer must
shoulder. The consensus view among the states is that “good cause” under ICWA must be
shown by clear and convincing evidence. People ex rel. J.L.P., 870 P.2d 1252, 1257 (Colo. Ct.
App. 1994); In re Adoption of T.R.M., 525 N.E.2d 298, 308, 314 (Ind. 1988); In re Interest of
A.P., 961 P.2d 706, 713 (Kan. Ct. App. 1998); In re M.E.M., 635 P.2d 1313, 1317 (Mont. 1981);
Puyallup Tribe, 237 P.3d at 167; People ex rel. T.I., 707 N.W.2d at 834; Dep’t of Soc. & Health
Servs. v. Priscilla S. (In re Dependency of E.S.), 964 P.2d 404, 408 (Wash. Ct. App. 1998). Like
the clear and convincing burden of proof that protects a parent’s rights in a termination of
parental rights proceeding, Code § 16.1-283(C), a clear and convincing standard in this context
protects the tribal interests that lie at the heart of ICWA. Cf. Native Village of Tununak v. Dep’t
of Health & Soc. Servs., 303 P.3d 431 (Alaska 2013) (discussing clear and convincing standard
in the context of adoption preferences under ICWA). Therefore, we hold that a party who seeks
to deny transfer bears the burden of proving good cause by clear and convincing evidence.
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B. The tribal court has jurisdiction over both parents.
The guardian ad litem and the foster parents argue that the case must be retained in the
Fairfax County Circuit Court because that is the only court with jurisdiction over both parents.
They argue that the tribal court lacks jurisdiction over father because he is not a member of the
Tribe, whereas the circuit court has jurisdiction over both mother and father. Whether the tribal
court could exercise jurisdiction over father is a legal question.13 We review such questions de
novo. See, e.g., Wilby v. Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 797 (2003).
As the guardian ad litem and the foster parents note, tribal courts have limited inherent
authority to adjudicate disputes involving non-members, see Montana v. United States, 450 U.S.
544, 565 (1981). Here, however, we are not dealing with a claim of inherent authority but rather
with jurisdiction expressly conferred by Congress. The text of ICWA is plain that tribal courts
have jurisdiction to adjudicate termination of parental rights cases involving an Indian child. 25
U.S.C. § 1911(b). ICWA further defines “parent” to include “any biological parent or parents of
an Indian child,” without reference to that biological parent’s race or ethnicity. 25 U.S.C.
§ 1903(9).14 The statute does not limit tribal court jurisdiction to cases where both parents are
Indian. Id. It applies to parents of Indian children across the board. The absence of an express
mention of non-Indian parents does not alter the plain language reading of the statute. See
Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (“[W]hen the statutory language is plain, we
must enforce it according to its terms.”). Furthermore, a non-Indian parent who objects to tribal
13
Mother and father argue that the guardian ad litem did not preserve this argument. The
foster parents made the argument in their motion to reconsider and in the accompanying
memorandum in opposition to the Tribe’s motion to transfer. The trial court’s final order reflects
that the guardian ad litem joined in this motion. Therefore, we conclude that the guardian ad
litem has preserved these arguments.
14
This definition includes an exception, not applicable here, for “the unwed father where
paternity has not been acknowledged or established.” 25 U.S.C. § 1903(9).
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court jurisdiction can defeat that jurisdiction by the simple expedient of filing an objection. 25
U.S.C. § 1911(b). In addition, father expressly has consented to the case being heard in the tribal
court. There is no question that the tribal court can exercise both subject matter and personal
jurisdiction over father, both by virtue of his consent and under the plain text of the statute.
In support of their argument, the guardian ad litem and the Thompsons cite In re Welfare
of the Child of R.S., 805 N.W.2d 44 (Minn. 2011). The issue before the court in that case was
whether Congress intended to permit transfer of adoptive and pre-adoptive placement
proceedings to tribal courts. Id. at 50-51. The court first noted that because neither the child nor
the child’s parents resided on the tribal reservation, the tribal court lacked inherent jurisdiction
over the termination of parental rights proceedings involving the child. Id. at 50. The court
found that “the tribal court could assume jurisdiction over the proceeding, if at all, only by
Congressional grant.” Id. Turning to the text of ICWA, and specifically 25 U.S.C. § 1911(b),
the court noted that Congress explicitly granted tribal courts jurisdiction over “foster care
placement” and “termination of parental rights” proceedings, while neglecting to mention child
custody proceedings, which “include[] preadoptive and adoptive proceedings.” Id. at 51. Since
Congress specifically used the term “child custody proceeding” in 25 U.S.C. § 1911(a), the court
concluded that the term’s absence in subsection (b) must have been the result of an intentional
choice made by Congress. Id. This “persuaded [the court] that Congress did not intend to permit
the transfer of adoptive and preadoptive placement proceedings to tribal courts.” Id. at 50-51.
Thus, the decision in R.S. does not support the argument that the tribal court lacks jurisdiction to
terminate father’s parental rights.
People ex rel. T.I., 707 N.W.2d 826, also cited by the guardian ad litem, likewise does
not support her argument. Two tribes were involved in that case, the Sisseton-Wahpeton Sioux
Tribe and the Yankton Sioux Tribe. One of the two children involved was enrolled in the
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Yankton Sioux Tribe. The only tribe requesting transfer, however, was the Sisseton-Wahpeton
Sioux Tribe. The South Dakota Supreme Court upheld the trial court’s finding of good cause,
reasoning that the only tribe asking for transfer did not have jurisdiction over a non-member,
whereas the state court was the only court with jurisdiction over both children. In addition,
experts had recommended that the children remain together. Id. at 835. Those facts simply bear
no resemblance to the case before us.
C. The role of the best interests of the child
The Thompsons and the guardian ad litem argue that B.N.’s best interests can establish good
cause not to transfer. The Tribe argues that a child’s best interests are irrelevant in determining
which court has jurisdiction to decide those best interests.
This question has sharply divided the lower courts. A number of courts have accepted a
child’s best interests as a factor that is relevant to the good cause inquiry. See In re Appeal in
Maricopa Cnty. Juv. Action No. JS-8287, 828 P.2d 1245, 1251 (Ariz. Ct. App. 1981) (“A trial court
properly may consider an Indian child’s best interests when deciding whether to transfer a custody
proceeding to tribal court.”); Weigle v. Devon T. (In re Robert T.), 246 Cal. Rptr. 168, 175 (Cal. Ct.
App. 1988) (holding that the best interests of the child is a “pertinent and indeed a necessary
consideration in deciding whether to grant or deny a transfer request”); In re Adoption of T.R.M.,
525 N.E.2d at 307-08 (concluding that the best interests of a child is a valid consideration in
determining whether to transfer a child custody proceeding to tribal court); In re T.S., 801 P.2d 77,
80-81 (Mont. 1990) (same); Carney v. Moore (In re N.L.), 754 P.2d 863, 869 (Okla. 1988)
(same); In re J.L., 654 N.W.2d 786, 792-93 (S.D. 2002) (same). These courts generally reason
that, in enacting ICWA, Congress had the best interests of Indian children in mind and courts
should not ignore those interests when deciding whether to transfer a case.
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Many courts, however, conclude that a best interests analysis is inappropriate when the issue
before the court is whether to transfer the case. These courts reject as irrelevant any inquiry into the
child’s best interests in making the transfer decision. They also reason that, by providing tribal
courts with presumptive jurisdiction, Congress presumed that these courts would consider a
child’s best interests in adjudicating a termination of parental rights case. People ex rel. J.L.P.,
870 P.2d at 1258-59 (holding that the best interests of the child are not relevant in determining
whether to transfer child custody proceedings to a tribal court); In re Armell, 550 N.E.2d 1060,
1065 (Ill. App. Ct. 1990) (same); T.W. v. L.M.W. (In re C.E.H.), 837 S.W.2d 947, 954 (Mo. Ct.
App. 1992) (same); State v. Elise M. (In re Zylena R.), 825 N.W.2d 173, 184-86 (Neb. 2012)
(overruling prior cases and holding that a child’s best interests “should not be a factor in resolving
the issue of whether there is good cause to deny a motion to transfer a case involving an Indian child
from state court to tribal court”); In re Guardianship of Ashley Elizabeth R., 863 P.2d 451, 456
(N.M. Ct. App. 1993) (holding the best interests of the child irrelevant to transfer decision); Hoots,
663 N.W.2d at 633-34 (same); Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 168-71 (Tex.
App. 1995) (reviewing conflicting authority and concluding that a child’s best interests is not
relevant to the transfer decision).
We conclude that the traditional best interest of the child analysis is too broad a
consideration in deciding whether good cause exists to retain jurisdiction. Rather, we hold that the
sole focus under this aspect of the good cause analysis should be on the immediate effect a transfer
of jurisdiction would have on the well-being of the child. Thus we conclude that the appropriate test
is whether the transfer of jurisdiction itself would cause, or would present a substantial risk of
causing immediate, serious emotional or physical damage to the child. We reach this conclusion for
several reasons. First, Congress plainly stated that one of the purposes of ICWA was, along with
protecting tribal interests, “to protect the best interests of Indian children.” 25 U.S.C. § 1902. This
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overriding purpose of ICWA cannot be ignored altogether in making the transfer decision. Second,
in the analogous context of ruling on forum non conveniens motions or change of venue motions,
courts have considered whether the forum chosen by the plaintiff would be oppressive and
vexatious to the defendant, or whether the “plaintiff’s chosen forum imposes a heavy burden on the
defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience
supporting his choice.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249 (1981). These
considerations have led courts to consider the health of the defendant in determining a proper
forum.15 Although the resolution of a transfer under ICWA differs from a ruling on a motion for a
change of venue or a forum non conveniens motion, the standards employed in ruling on those
motions inform our analysis of the proper forum under ICWA. Therefore, we hold that good cause
exists under 25 U.S.C. § 1911(b) if the party opposing the transfer can establish by clear and
convincing evidence that transferring the case to a tribal court would cause, or would present a
substantial risk of causing, immediate serious emotional or physical damage to the child.16
15
Schexnider v. McDermott Int’l, Inc., 817 F.2d 1159, 1163 (5th Cir. 1987) (declining to
transfer the case because, among other factors, plaintiff, an American seaman in poor health,
would be greatly inconvenienced by suit in Australia, and therefore the United States constituted
the proper forum); Elemary v. Philipp Holzmann A.G., 533 F. Supp. 2d 144, 153 (D.D.C. 2008)
(“A moving party’s medical disability can support a motion to transfer venue . . . .”); Hand v.
Liberty Life Assurance Co. of Boston, No. 07 C 1422, 2008 U.S. Dist. LEXIS 26501, at *6-7
(N.D. Ill. Mar. 31, 2008) (transferring a case pursuant to 28 U.S.C. § 1404(a), in part because the
defendant was elderly and suffered from serious health problems, and there was no
countervailing difficulty for the plaintiff); Sassy, Inc. v. Berry, 406 F. Supp. 2d 874, 876-77
(N.D. Ill. 2005) (transferring case pursuant to 28 U.S.C. § 1404(a), in part because the defendant
suffered from health problems and was advised by his physician not to travel); BSB Bank &
Trust Co. v. Morrison, No. 02-CV-648, 2003 U.S. Dist. LEXIS 5408, at *5-7 (N.D.N.Y. Apr. 4,
2003) (transferring a case under 28 U.S.C. § 1404(a), despite a forum selection clause, because
the significant medical problems of the defendants constituted exceptional circumstances).
16
Transferring a young child to a new setting inevitably will cause some disruption and not
infrequently some modicum of harm to the child. That bare showing, without more, however,
cannot be sufficient to defeat transfer to a tribal court.
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The focus in a transfer decision under 25 U.S.C. § 1911(b) must remain on the immediate
serious emotional or physical damage flowing from the transfer itself. This inquiry is not the same
as a determination of a child’s best interests in a proceeding to terminate parental rights. The
statutory structure makes clear Congress’s presumption that, in the event of a transfer, tribal courts
are fully competent to consider the child’s best interests in adjudicating the termination of parental
rights proceeding. Thus, ICWA presumes jurisdiction rests with the tribe, and the transfer inquiry
must center on whether a compelling reason exists not to transfer the case, based in part on the
immediate effect of a transfer of jurisdiction on the child.
A relevant consideration in this regard is whether the Tribe is willing to allow the child to
stay in her current environment, pending adjudication of the case on the merits of termination and/or
placement. When the “serious emotional or physical damage” aspect of the good cause
determination becomes an issue, good cause to deny transfer does not exist if the tribe agrees to
maintain the status quo until it completes its adjudication on the merits. Only if the tribe does not
agree or fails to present evidence of its agreement to preserve the status quo does good cause exist
not to transfer.
The trial court held that harm to the child was not relevant in adjudicating a transfer decision
under ICWA. For the reasons noted above, we reach a contrary conclusion. This error of law
compels us to reverse and remand for a determination of whether clear and convincing evidence
establishes a transfer would cause, or would present a substantial risk of causing, immediate serious
emotional or physical damage to B.N. If the answer is in the affirmative and the Tribe fails to
present evidence establishing it will maintain the status quo in the child’s placement pending
adjudication of the underlying issues, good cause exists to retain the case in state court.17
17
We recognize that the trial court made a determination, in granting a stay pending appeal,
that the child would be gravely injured by a transfer of the case to the tribal court. Nevertheless, a
remand is appropriate for several reasons. First, the burden of proof for a finding of good cause is
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Otherwise, we must apply the statutory presumption that the tribal court is in the best position to
determine what outcome will achieve an appropriate balance between ICWA’s dual goals of
“protect[ing] the best interests of Indian children” while also “promot[ing] the stability and
security of Indian tribes and families by the establishment of minimum Federal standards for the
removal of Indian children from their families and the placement of such children in foster or
adoptive homes which will reflect the unique values of Indian culture.” 25 U.S.C. § 1902.
D. The proceedings were not at an advanced stage.
The guardian ad litem and the foster parents argue that the case was at an advanced stage
and, therefore, good cause was present to retain the case in state court. The guidelines provide that
good cause may exist when “[t]he proceeding was at an advanced stage when the petition to transfer
was received and the petitioner did not file the petition promptly after receiving notice of the
hearing.” 44 Fed. Reg. 67,591. The commentary to the guidelines states that “requests [to transfer
the case] are to be made promptly after receiving notice of the proceeding” and that
[w]hen a party who could have petitioned earlier waits until the case
is almost complete to ask that it be transferred to another court and
retried, good cause exists to deny the request.
Timeliness is a proven weapon of the courts against
disruption caused by negligence or obstructionist tactics on the part
of counsel. If a transfer petition must be honored at any point before
judgment, a party could wait to see how the trial is going in state
court and then obtain another trial if it appears the other side will
win. . . . The Act was not intended to authorize such tactics and the
by clear and convincing evidence, which represents a higher quantum of proof than what is required
to obtain a stay. Second, the purpose of a stay pending appeal “is to preserve the status quo pending
appellate determination,” McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996),
whereas the purpose of the good cause finding is to determine whether to transfer or keep a case
involving an Indian child. Third, a wide range of considerations come into play in determining
whether to grant a stay. See Hilton v. Braunskill, 481 U.S. 770, 774-78 (1987). In contrast, the
good cause inquiry here is much more focused and turns on a determination of whether transferring
the child to a tribal court would cause, or would present a substantial risk of causing, serious
emotional or physical damage to the child. Finally, parties generally will make different tactical
choices in litigating a motion to stay than they would make in litigating the question of good cause
to deny transfer.
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“good cause” provision is ample authority for the court to prevent
them.
44 Fed. Reg. 67,590, C.1. cmt.
Applying this aspect of good cause, some courts have held that a transfer motion filed after
the final disposition of the case is not timely. See People ex rel. S.G.V.E., 634 N.W.2d 88, 93 (S.D.
2001); In re A.P., 962 P.2d 1186, 1190-91 (Mont. 1998). Another court found that a motion to
transfer filed on the day of trial or during trial was untimely, and, therefore, good cause was present
to deny the transfer. See State ex rel. Human Servs. Dep’t v. Wayne R.N. (In re Term. of Parental
Rights of Wayne R.N.), 757 P.2d 1333, 1335-36 (N.M. Ct. App. 1988) (holding that a motion to
transfer made orally on the morning of trial, six months after the tribe was given notice of the
proceedings, was one of the factors weighing in favor of finding good cause to deny transfer).
Whether a proceeding is at an advanced stage is not susceptible to bright line rules. See In re
Welfare of Child of T.T.B. & G.W., 724 N.W.2d 300, 307-08 (Minn. 2006) (holding the
proceeding was at an advanced stage because various steps required by Minnesota law had
already taken place and the trial had previously been postponed).
We first conclude that a failure to seek transfer at the earliest opportunity does not constitute
an unreasonable delay by the Tribe. ICWA allows tribes to seek the transfer to a tribal court in two
kinds of proceedings: “foster care placement” and “termination of parental rights.” 25 U.S.C.
§ 1911(b). The foster parents argue that “Congress intended to grant tribes the right to request
transfer of a single proceeding – whichever one takes place first.” We disagree. First, a plain
reading of 25 U.S.C. § 1911(b) allows the Tribe to intervene in either a foster care placement or a
termination of parental rights case, or both. The terms “foster care placement” and “termination of
parental rights” are separately defined under ICWA. 25 U.S.C. § 1903(1). To conflate the two
“would subsume an Indian tribe’s right to request transfer of a termination proceeding into its right
to request transfer of an earlier foster care placement proceeding.” Hoots, 663 N.W.2d at 632; see
- 24 -
also Elise M., 825 N.W.2d at 182 (“The State’s argument that a foster care placement proceeding
and a termination of parental rights proceeding are a single ‘proceeding’ for purposes of the
‘advanced stage’ analysis is inconsistent with the plain language of ICWA . . ., which defines them
as separate proceedings.”).
Second, a foster care placement differs materially from a termination of parental rights case.
“[A] foster care placement proceeding seeks to temporarily remove an Indian child from the child’s
parent or Indian custodian without terminating parental rights, while a termination of parental rights
proceeding seeks to end the parent-child relationship.” Hoots, 663 N.W.2d at 632. In Virginia,
when a child is initially removed from her parents’ care, the default goal ordinarily is to reunite the
child with his or her parents. See Code §§ 16.1-281 to -283. A termination of parental rights
proceeding is a far more drastic step and implicates the tribe’s interest in a much more significant
way. As the Supreme Court of Nebraska observed,
a Tribe may have no reason to seek transfer of a foster placement
proceeding where it agrees with the Indian child’s placement and the
permanency goal is reunification with the parents. However, once
the goal becomes termination of parental rights, a Tribe has a strong
cultural interest in seeking transfer of that proceeding to tribal court.
Elise M., 825 N.W.2d at 183. The Thompsons’ reading of the statute would effectively force the
tribe to intervene in every foster care placement or risk forfeiting their interests. This would
needlessly complicate foster care placement hearings and cause a significant and often unnecessary
expenditure of scarce tribal resources.
The Thompsons and the guardian ad litem also argue that the circuit court should have
considered harm to the child in determining whether the proceedings were at an advanced stage.
They point out that an earlier intervention by the Tribe would have prevented further attachment
between B.N. and her foster care family and would have reduced the harm she may suffer should
she be removed from her foster care family. This argument invites us to reintroduce a best interests
- 25 -
analysis in determining whether the proceedings are at an advanced stage. We addressed above the
best interests analysis with regard to transfers under 25 U.S.C. § 1911(b). Accordingly, we decline
to address that issue anew in the context of determining whether the proceedings are at an advanced
stage.
The Thompsons and the guardian ad litem also argue that the trial court should not have
considered the lack of notice to the parents of their right to transfer the case to a tribal court. The
guidelines, but not the statute, provide that parents should be provided with notice, “written in clear
and understandable language . . . [which] include[s] the following information: . . . [a] statement of
the right of the parents or Indian custodians or the Indian child’s tribe to petition the court to
transfer the proceeding to the Indian child’s tribal court.” 44 Fed. Reg. 67,588, B.5(b)(ix). The
circuit court indicated that its decision was influenced by the fact that the parents were not provided
with this notice. The parents’ lack of notice does not influence our review of good cause for two
reasons. First, the text of ICWA does not require this notice. Although the guidelines provide for
such notice, the guidelines are advisory only. Second, the parents were represented by counsel.
Counsel for mother and father were aware that B.N. was or may be an Indian child. Therefore,
counsel could readily have investigated the parents’ rights under ICWA.
Instead, our resolution of this question is focused on the plain understanding that the
commencement of a de novo trial in circuit court to terminate parental rights is not an advanced
stage. While the appeal to circuit court does not automatically suspend the judgment of the J&DR
court under Code § 16.1-298, that does not alter the fact that the parties were standing on the
threshold of a de novo proceeding when the Tribe moved to transfer the case. The fact that Virginia
grants de novo review in circuit court to a judgment of a J&DR court terminating a parent’s residual
parental rights means that the J&DR court proceeding and the circuit court proceeding each
constitute a proceeding to terminate parental rights within the intendment of ICWA. Moreover,
- 26 -
pursuing an appeal that the law entitles a party to file hardly constitutes obstructionist tactics,
gamesmanship, or forum shopping.
Finally, the Tribe did not act with undue delay. The Tribe intervened promptly enough after
being notified of the pending termination of parental rights proceeding in circuit court: as required
by ICWA, the Tribe was notified by registered letter on June 19, 2012, signed for by a tribal
representative on July 5, 2012, of the de novo trial in the circuit court; the Tribe moved to intervene,
albeit in the wrong court, on August 1, 2012. This signaled to the parties that the Tribe intended to
intervene, and the County promptly sought a continuance to accommodate the Tribe. The Tribe
filed its motion to intervene in the correct court on September 7, 2012. Moreover, there is no
indication that the delay in the intervention by the Tribe, which occurred before the de novo trial had
commenced, caused any prejudice to the parties. For all of these reasons, we conclude that the trial
court correctly concluded that the proceeding was not at an advanced stage and, therefore, good
cause did not exist on this basis to deny transfer to the tribal court.
E. Hardship to the parties
The Thompsons and the guardian ad litem contend that good cause exists because
transferring the case to the tribal court in North Dakota would cause undue hardship to the parties
and to the witnesses. The guidelines recognize such hardship as a basis for good cause, providing
that “[g]ood cause not to transfer the proceeding may exist if . . . [t]he evidence necessary to decide
the case could not be adequately presented in the tribal court without undue hardship to the parties
or the witnesses.” 44 Fed. Reg. 67,591, C.3(a)(iii). The commentary, written in 1979, notes that
“[a]pplication of this criterion will tend to limit transfers to cases involving Indian children who do
not live very far from the reservation. This problem may be alleviated in some instances by having
the court come to the witnesses.” 44 Fed. Reg. 67,591, C.3 cmt.
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The foster parents and the guardian ad litem point out that all or at least the vast majority of
the witnesses are located in Fairfax County. The Tribe is located in North Dakota, 1600 miles
away. The trial court reasoned that modern technology, audio visual communication, and hearings
by telephone, will allow the tribal court to hear the evidence without undue hardship.
The guardian ad litem notes that the Tribe did not employ audio visual technology in this
case, but rather appeared by telephone. She also argues that the telephone connection with the Tribe
was poor. However, the record reveals that the tribal attorney was able to satisfactorily present
argument. The only problem the record reveals is that on several occasions the attorney for the
Tribe had difficulty hearing, and he was once disconnected. This problem was easily solved.
Counsel for the Tribe represented to the court that participation by video or by telephone is
“commonplace” and could be set up “with ease.” The trial court accepted and relied upon this
representation from counsel. Based on the representation of counsel for the Tribe concerning the
availability of telephonic or audio visual communication, we discern no undue hardship for the
parties or the witnesses in presenting their testimony by such means.
More compellingly, the guardian ad litem argues that the necessary witnesses cannot be
compelled to testify by subpoena and “[t]o say all nine [witnesses designated by the County] would
voluntarily make themselves available is not realistic.” The burden of proving good cause rests
with the party opposing the transfer. The absence of extraterritorial subpoena power could establish
good cause in the appropriate case – a forum is not appropriate if the evidence cannot or will not be
presented there.18 The record here, however, fails to indicate that the relevant witnesses would not
18
Like the States, whose authority is circumscribed, subject to limited exceptions, to the
borders of each particular State, Indian tribes have limited power to issue subpoenas for
witnesses who are beyond the borders of the tribe’s reservation. See N.D. Op. Att’y Gen.
99-F-12 (1999) (concluding that the tribe has no extraterritorial subpoena authority over North
Dakota employees of the North Dakota Department of Human Services), available at
http://www.ag.state.nd.us/opinions/1999/Formal/9912.pdf (ND official opinions). See generally
Rhonda Wasserman, The Subpoena Power: Pennoyer’s Last Vestige, 74 Minn. L. Rev. 37, 39
- 28 -
or would be unlikely to participate by telephone or via audio visual communication.19 As to
documents, there is no reason to believe the Tribe would not have access to relevant documents that
are a matter of public record. Therefore, the evidence supports the trial court’s ruling declining to
find good cause on this ground.
CONCLUSION
We reverse and remand for further proceedings to determine whether, by clear and
convincing evidence, the transfer to a tribal court would cause, or would present a substantial risk
of causing, immediate serious emotional or physical damage to B.N., and we reverse the award of
custody of B.N. to the Tribe.20
Reversed and remanded.
(1989) (discussing territorial limits on a state’s subpoena authority). In addition, it is not clear to
what extent the Uniform Interstate Depositions and Discovery Act (UIDDA), as codified at Code
§ 8.01-412.8 to -412.15, applies to a tribe.
19
Given that the bulk of the Virginia witnesses appear to favor a retention of custody by
foster parents, with or without a termination of parental rights, the evidence actually tends to
indicate those witnesses are likely to participate willingly or based upon payment of their expert
witness fees.
20
The Tribe and B.N.’s natural parents argue that the trial court erred in issuing a stay.
Our remand makes this question moot. In the absence of an argument that this is a question that
is capable of repetition yet evading review, we do not address the point.
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