In re K.S., Juvenile ( 2021 )

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.
2021 VT 51Nos. 2020-154 & 2020-172
In re K.S., Juvenile Supreme Court
On Appeal from
Superior Court, Franklin Unit,
Family Division
June Term, 2021
Howard E. Van Benthuysen, J.
Sarah Star, Middlebury, for Appellant Mother.
Thomas J. Donovan, Jr., Attorney General, and Benjamin D. Battles, Solicitor General,
Montpelier, for Appellee Department for Children and Families.
Matthew Valerio, Defender General, and Marshall Pahl, Deputy Defender General, Montpelier,
for Appellee Juvenile.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.
¶ 1. REIBER, C.J. In these consolidated appeals, mother challenges decisions by the
family division of the superior court denying mother’s motions for an extension of time to file a
notice of appeal and to vacate the order terminating her parental rights to K.S., and concluding that
K.S. is not an Indian child for purposes of the Indian Child Welfare Act. We affirm.
I. Background
¶ 2. K.S. was born in February 2018. In March 2018, a relative reported that mother
had “tossed” K.S. onto a bed during a family argument and that father had used excessive physical
discipline on K.S.’s older brother. K.S. was later found to have a buckle fracture on her wrist,
which parents were unable to explain. At the time, the family was living with three other adults
in a hotel room. The Department for Children and Families (DCF) sought and obtained emergency
custody of K.S. and her brother, and filed petitions alleging that they were children in need of care
or supervision (CHINS). Mother and father later stipulated to the merits of the CHINS petitions.
In June 2019, DCF filed petitions to terminate the parental rights of both parents to K.S. At
separate hearings in June and October 2019, father and mother each stipulated to termination and
entered into post-adoption contact agreements with the foster parents. At the October hearing,
mother testified that she understood that she was permanently giving up her parental rights, that
her decision was voluntary, and that she believed the decision was in K.S.’s best interests. The
court accepted the parties’ stipulations and granted the termination petitions.
¶ 3. In December 2019, mother hired a new attorney, who filed a motion for relief from
the termination order pursuant to Vermont Rule of Civil Procedure 60(b). Mother alleged that the
attorney who represented her at the relinquishment hearing had rendered ineffective assistance,
that the underlying facts did not support termination of mother’s parental rights, and that her
relinquishment was involuntary because she did not understand the proceedings. The family
division held a hearing and on March 10, 2020, issued an order denying the motion. It found that
mother’s relinquishment was knowing and voluntary and not the result of coercion by DCF or the
foster parents. The court concluded that it was not required to conduct a separate analysis of the
factors in 33 V.S.A. § 5114(a), the so-called best-interests factors, when mother voluntarily
relinquished her rights. It further found that mother had failed to establish that her counsel’s
performance was ineffective.
¶ 4. On April 2, 2020, K.S. was adopted by the foster parents with whom she had been
living for most of her life.
¶ 5. On April 10, 2020, mother filed a notice of appeal from the court’s decision denying
her Rule 60 motion. This Court dismissed the appeal as untimely because it was filed more than
2
thirty days after the judgment. We directed mother’s attention to Vermont Rule of Appellate
Procedure 4(d), which permits the superior court to extend the appeal period for excusable neglect
or good cause shown.
¶ 6. Mother then filed a motion for an extension of time with the family division of the
superior court. The family division found that mother failed to demonstrate good cause or
excusable neglect for the untimely filing and denied the motion. Mother filed a timely notice of
appeal from this order.
¶ 7. While her appeal from the extension-denial order was pending, mother filed a
second motion to vacate the termination order. The family division concluded that it lacked
jurisdiction to consider the motion because K.S. had been adopted, and stated that even if it had
jurisdiction, it would deny mother’s motion. Mother filed a timely notice of appeal from this order
as well. We granted mother’s request to consolidate the appeals for review.
¶ 8. Mother filed her initial appellate brief in August 2020. She argued that the family
division abused its discretion by denying her request for an extension of time to appeal, erred in
concluding that it lacked jurisdiction to entertain her second Rule 60 motion, erred in terminating
parental rights based on her voluntary relinquishment without independently considering K.S.’s
best interests, and failed to ascertain that her relinquishment was knowing and voluntary. She
argued that she received ineffective assistance of counsel at the relinquishment hearing. Finally,
she claimed that the termination order had to be reversed because father had reported to DCF that
K.S. had Cherokee heritage, and the court had failed to give notice to the Cherokee tribes or to
apply the substantive provisions of the Indian Child Welfare Act (ICWA).
¶ 9. After mother filed her brief, DCF sent notice of K.S.’s potential tribal membership
and the pending termination proceeding to the three federally recognized Cherokee tribes, as well
as the Regional Director of the Bureau of Indian Affairs. DCF asked this Court to stay mother’s
3
appeal until DCF received a response. Mother opposed the stay. In September 2020, we remanded
the matter for the family division to consider the applicability of the ICWA.
¶ 10. On remand, mother filed an “omnibus motion” in which she: (1) argued that the
court should vacate the termination order because DCF’s initial failure to comply with the ICWA
rendered the judgment void; (2) challenged the court’s conclusion that it lacked jurisdiction to
address her second Rule 60 motion; (3) asked the court to appoint new counsel for herself and K.S.
and to revoke K.S.’s consent to termination on the ground that K.S.’s attorney had a conflict of
interest; (4) requested parent-child contact; (5) asked the court to direct DCF to comply with the
ICWA; (6) requested genetic material from K.S. and “plenary” discovery to investigate the
underlying allegations in the CHINS proceeding; (7) challenged the CHINS merits stipulation; and
(8) sought judgment on the pleadings or relief under Rule 60.
¶ 11. The court rejected mother’s claim that the ICWA notice violation required
automatic reversal of the termination order and reinstatement of parental rights or parent-child
contact. The court denied mother’s motions for judgment on the pleadings, for relief under Rule
60, and to revoke K.S.’s consent to termination, concluding that these matters were outside of the
scope of the remand and that it lacked jurisdiction to grant relief under Rule 60 because K.S. had
been adopted. It ruled that mother’s motion to assign new counsel was moot because new counsel
had been assigned. The court denied mother’s motion for discovery regarding the CHINS
proceeding as beyond the scope of the remand. It also denied her request to subpoena out-of-state
records and to collect K.S.’s genetic material as not required under the ICWA. However, it granted
discovery of records related to the ICWA proceeding and indicated that it would set a hearing to
determine whether K.S. was an Indian child.
¶ 12. The court held a hearing on the applicability of the ICWA over two days in
December 2020 and February 2021. It issued a decision in March 2021 finding that the notices
sent by DCF complied with the ICWA, that DCF exercised due diligence, and that the tribes had
4
responded that K.S. was not an Indian child of their tribes. The court concluded that K.S. was not
an Indian child to whom the ICWA applied. Mother filed a timely notice of appeal from this order.
This Court consolidated the new appeal with the two previous appeals.
II. Mother’s Claims on Appeal
A. Motion for Extension of Time to Appeal
¶ 13. Mother first argues that the family division abused its discretion in denying her
motion to extend the time to appeal its March 2020 decision denying her first motion for relief
under Rule 60. Vermont Rule of Appellate Procedure 4 provides that if a party fails to timely file
a notice of appeal, the party may request an extension from the superior court. V.R.A.P. 4(d). The
court may grant an extension if the party files the motion within thirty days after the initial appeal
period expired and shows that the failure to timely file was due to “excusable neglect or good
cause.” V.R.A.P. 4(d)(1). The Reporter’s Notes to the rule explain that “[g]ood cause refers to
situations in which there is no fault on the movant’s part—e.g., failure of the Postal Service to
deliver the notice of appeal,” while “[e]xcusable neglect assumes fault on the part of the movant.”
Reporter’s Notes—2006 Amendment, V.R.A.P. 4. The decision whether to grant a motion for
extension of time to appeal is discretionary and we will reverse only if the court withheld discretion
altogether or exercised it for “clearly untenable” reasons. Clark v. Baker, 2016 VT 42, ¶ 20, 201
Vt. 610, 146 A.3d 326 (quotation omitted).
¶ 14. In her motion for extension of time, mother attributed her untimely filing of the
notice of appeal to both good cause and excusable neglect. She asserted that due to the coronavirus
pandemic, she lacked access to technology that would allow her to access or print documents
necessary to file an appeal and was unable to notarize documents. She stated that she had moved
to Missouri for work and did not have a computer, making it difficult to access the Vermont court
system. She argued that these circumstances “interfered with [her] ability to retain or consult with
counsel” to pursue an appeal.
5
¶ 15. The family division denied the motion. It noted that although mother implied that
she was pro se and had difficulty filing the appeal herself, the record showed that mother had in
fact been represented by counsel at all relevant times. The attorney who filed the original Rule 60
motion had never withdrawn from the case and was still mother’s attorney of record. Mother did
not explain why her attorney, who had vigorously prosecuted the Rule 60 motion, was unable to
perform the relatively simple tasks necessary to file a notice of appeal. The court also concluded
that mother did not demonstrate excusable neglect, because she did not explain why she could not
contact her attorney by telephone to file an appeal on her behalf. The court stated that it had no
reason to doubt mother’s good faith in seeking an extension. However, it concluded that granting
the motion would unduly prejudice K.S. by drawing out the termination proceedings and
potentially removing her from the home where she had lived for nearly her entire life.
¶ 16. On appeal, mother argues that the court’s decision must be reversed because the
court failed to consider whether the coronavirus pandemic constituted good cause for her delay in
filing a notice of appeal. This argument lacks merit. The first part of the court’s analysis was
clearly focused on mother’s good-cause argument, which was that she was prevented from filing
a timely notice of appeal due to her relocation for work, implied lack of counsel, and pandemic-
related restrictions. The court considered these allegations and expressly found that the facts
alleged by mother did not constitute good cause for the delay. The court did not withhold its
discretion, and its explanation for its decision is not unreasonable or inconsistent with existing
law.1 See Clark, 2016 VT 42, ¶ 20.
1
On March 16, 2020, this Court issued the first version of Administrative Order Number
49, which, in relevant part, permitted email filings in the superior court. The administrative order
stated that it was not extending statutes of limitations or court filing deadlines. Although the
Governor of Vermont issued executive orders late that March suspending in-person business
operations for nonessential businesses, including law firms, no executive or administrative order
suspended court filings or litigants’ obligations under court filing deadlines.
6
¶ 17. Mother further argues that the court erred in concluding that she did not
demonstrate excusable neglect. We disagree. In determining whether excusable neglect exists,
courts consider “the danger of prejudice to the [nonmovant], the length of the delay and its
potential impact on judicial proceedings, the reason for the delay, including whether it was within
the reasonable control of the movant, and whether the movant acted in good faith.” In re Town of
Killington, 2003 VT 87A, ¶ 16, 176 Vt. 60, 838 A.2d 98 (quoting Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)). We apply the excusable-neglect
standard strictly, “lest there be a de facto enlargement of the appeal-filing time to sixty days.”
Town of Killington, 2003 VT 87A, ¶¶ 17, 19 (holding internal-office-procedure breakdown not
excusable neglect as matter of law); see also In re Lund, 2004 VT 55, ¶ 7, 177 Vt. 465, 857 A.2d
279 (mem.) (holding mistaken reading of rule not excusable neglect); Bergeron v. Boyle, 2003 VT
89, ¶ 22, 176 Vt. 78, 838 A.2d 918 (holding lawyer’s vacation and internal-office-procedure
breakdown not excusable neglect). In considering whether excusable neglect exists, “the
appropriate focus is on the third factor: the reason for delay, including whether it was within the
reasonable control of the movant.” Town of Killington, 2003 VT 87A, ¶ 16.
¶ 18. The family division applied the appropriate standard in this case and its decision is
reasonable. As the court found, mother did not adequately explain the reason for the delay in her
motion to the court.2 Her proffered reason—that she herself was unable to access a computer to
file the appeal—did not explain why her attorney could not file an appeal on her behalf. She did
not, for example, allege that she was unable to contact the attorney or that the attorney was
unavailable. Under these circumstances, the court acted within its discretion in concluding that
mother did not demonstrate excusable neglect. We therefore affirm the court’s denial of mother’s
motion for extension of time.
2
On appeal, mother offers various theoretical reasons for the delay, such as the difficulty
and expense of ordering a transcript, but she did not raise these arguments before the trial court.
7
B. Second Rule 60(b) Motion
¶ 19. Mother next challenges the family division’s order denying her second motion for
relief from judgment. Mother argues that the court erred in concluding that it lacked subject matter
jurisdiction to consider the motion due to K.S.’s adoption, and should have granted her motion to
vacate the termination order and hold a hearing on K.S.’s best interests pursuant to 33 V.S.A.
§§ 5113-5114.
¶ 20. “ ‘Subject matter jurisdiction’ refers to the power of a court to hear and determine
a general class or category of cases.” Lamell Lumber Corp. v. Newstress Int’l, Inc., 2007 VT 83,
¶ 6, 182 Vt. 282, 938 A.2d 1215. Whether the family division had subject matter jurisdiction to
consider mother’s second Rule 60 motion is a legal question that we review de novo. See Penland
v. Warren, 2018 VT 70, ¶ 6, 208 Vt. 15, 194 A.3d 755. “Because the jurisdiction of the trial courts
is shaped by the legislature, subject matter jurisdiction is a question of statutory interpretation.”
Baron v. McGinty, 2021 VT 6, ¶ 29, __ Vt. __, __ A.3d __ (citation omitted) (quotation omitted);
see also Off. of Child Support ex rel. Lewis v. Lewis, 2004 VT 127, ¶ 7, 178 Vt. 204, 882 A.2d
1128 (explaining that scope of family division’s jurisdiction is limited by statute). We interpret
statutes to give effect to legislative intent, as expressed in the plain language of the statute. Baron,
2021 VT 6, ¶ 30.
¶ 21. Section 5103 of Title 33 gives the family division exclusive jurisdiction over all
proceedings concerning a child who is alleged to be CHINS. 33 V.S.A. § 5103(a). Subsection (d)
provides: “If the child is not subject to another juvenile proceeding, jurisdiction shall terminate
automatically . . . upon the adoption of a child following a termination of parental rights
proceeding.” Id. § 5103(d). In In re C.L.S., 2021 VT 25, ¶ 12, __ Vt. __, __ A.3d __, we concluded
that the family division lacked jurisdiction under § 5103(d) to hear a post-adoption Rule 60 motion
that was filed after this Court issued its mandate affirming the father’s direct appeal from the
termination of his parental rights, because no other motion or proceeding concerning the child was
8
pending at the time. The father in that case argued that the phrase “not subject to another juvenile
proceeding” in § 5103(d) did not require the other proceeding to actually be pending. We
disagreed, explaining that the phrase clearly “is intended to mean that the child is not then affected
by a pending juvenile case.” Id. ¶ 12 n.2. We rejected father’s claim that because the time for
filing a petition for certiorari with the U.S. Supreme Court had not yet expired, the child was not
yet legally free for adoption, noting that father had not sought to stay the mandate or actually filed
a petition for certiorari. Id. ¶ 12 n.1.
¶ 22. Here, the family division issued its decision denying mother’s original Rule 60(b)
motion on March 10, 2020. On April 2, 2020, K.S. was adopted. At that point, she was not subject
to an appeal or any other pending juvenile proceeding, and the family division’s authority to hear
new substantive motions ended.3 Id. ¶ 12. Although mother still had the right to appeal, she failed
to timely exercise that right.4 Accordingly, the family division correctly held that it lacked
jurisdiction to consider mother’s second Rule 60 motion and subsequent motions that were outside
the scope of the later remand.
¶ 23. Mother argues that the termination order nevertheless must be vacated because the
court failed to ascertain that her relinquishment was voluntary and because she received ineffective
3
The family division plainly still retained authority to consider mother’s motion for
extension of time to appeal, which was determinative of whether this Court had jurisdiction over
the appeal. Under Vermont Rules of Appellate Procedure 4(d) and 26(b)(1), only the family
division could decide that question, and we do not view 33 V.S.A. § 5103(d) as prohibiting the
family division from addressing such procedural motions. See Town of Killington, 2003 VT 87A,
¶ 15 (explaining that time limits for filing appeals are procedural matters and their application does
not affect substantive rights or jeopardize execution of statute).
4
We need not and do not decide whether the adoption would have prevented this Court
from exercising jurisdiction over the appeal if mother had timely filed a notice of appeal after the
adoption. In this case, she did not do so. And we need not decide whether an adoption can cut off
the family division’s jurisdiction to hear a timely Rule 60(b) motion filed on account of ineffective
assistance of counsel. In this case, mother had filed a Rule 60(b) motion, and the trial court had
issued a judgment that became final upon expiration of the appeal period.
9
assistance of counsel at the relinquishment stage.5 These arguments were rejected on their merits
by the family division in its first Rule 60 decision, which mother failed to timely appeal. We
therefore lack jurisdiction to consider them. See LaMoria v. LaMoria, 171 Vt. 559, 560, 762 A.2d
1233, 1235 (2000) (mem.) (holding that mother’s failure to timely appeal prior order in custody
case prevented her from raising claim related to prior order in later appeal); Allen v. Vt. Emp’t
Sec. Bd., 133 Vt. 166, 168, 333 A.2d 122, 124 (1975) (“A timely appeal is jurisdictional.”).
Similarly, we need not address whether the family division correctly held in its March 2020
decision that a best-interests hearing is not required under 33 V.S.A. § 5114(a) when the parties
stipulate to termination, because mother failed to timely appeal that decision.
C. Applicability of the ICWA
¶ 24. We turn to the family division’s decision regarding the applicability of the ICWA
to K.S. Mother claims that the court erred in concluding that DCF’s belated inquiry and due
diligence were sufficient under the ICWA; ignored information mother attempted to provide
indicating that K.S. may have been a member of another tribe; and erroneously denied discovery
into out-of-state records and excluded testimony from a proffered expert on tribal law. She also
claims that the court’s initial noncompliance with the ICWA rendered her relinquishment
5
Mother repeatedly states in her supplemental brief that DCF conceded during the remand
proceedings that her rights were involuntarily terminated and that she received ineffective
assistance of counsel. The record does not support this claim. The statement by a DCF witness
during her testimony about DCF’s efforts to give the ICWA notices that she understood this
CHINS case to be an involuntary proceeding cannot reasonably be viewed as a concession that
mother’s relinquishment was involuntary. Similarly, the statements by DCF’s attorney that there
had been a failure by all parties and the court to follow up on father’s statement that K.S. had
Indian heritage does not amount to an admission that mother’s first attorney was ineffective.
Accordingly, we reject mother’s argument, which appears to be raised for the first time on appeal,
that the termination order must be vacated because she was fraudulently induced into believing
that she was voluntarily relinquishing her rights when in fact they were terminated involuntarily.
10
involuntary and required the court to vacate the termination order.6 We conclude that these claims
are without merit and affirm.
¶ 25. Congress enacted the ICWA in 1978 “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.” 25 U.S.C. § 1902. An “Indian child” is
defined under the ICWA 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). The ICWA provides that when the court has
reason to know that an Indian child is involved in a juvenile proceeding, “the party seeking the
foster care placement of, or termination of parental rights to” the child must notify the child’s tribe
or, if the tribe cannot be determined, to the Bureau of Indian Affairs (BIA), and give the tribe a
chance to exercise jurisdiction or to intervene.7 Id.§ 1912(a). The BIA has promulgated
regulations to administer the ICWA, which require a state court to ask each participant at the
beginning of a child-custody proceeding whether the participant knows or has reason to know that
the child is an Indian child. 25 C.F.R. § 23.107(a). The regulations further provide:
6
Mother also argues that the court erred in denying her other motions for lack of
jurisdiction and because they were outside the scope of the remand from this Court. We disagree.
As discussed above, the court lacked jurisdiction to entertain further motions due to K.S.’s
adoption. On remand, the court was acting pursuant to our mandate and therefore was limited to
addressing questions related directly to the ICWA issue. See Coty v. Ramsey Assocs., Inc., 154
Vt. 168, 171, 573 A.2d 694, 696 (1990) (explaining that on remand, trial court “act[s] pursuant to
our mandate and thus [is] limited to following our specific directions as interpreted in light of the
opinion”). The court therefore did not err in declining to address mother’s third Rule 60 motion,
motion for judgment on the pleadings, motion to revoke K.S.’s consent to termination, and motion
for discovery into the CHINS proceeding. The court did address mother’s motions that were
related to the ICWA issue.
7
“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.” In re J.T., 166 Vt.
173, 181, 693 A.2d 283, 288 (1997).
11
If there is reason to know the child is an Indian child, but the court
does not have sufficient evidence to determine that the child is or is
not an “Indian child,” the court must:
(1) Confirm, by way of a report, declaration, or testimony included
in the record that the agency or other party used due diligence to
identify and work with all of the Tribes of which there is reason to
know the child may be a member (or eligible for membership), to
verify whether the child is in fact a member (or a biological parent
is a member and the child is eligible for membership); and
(2) Treat the child as an Indian child, unless and until it is
determined on the record that the child does not meet the definition
of an “Indian child” in this part.
Id. § 23.107(b).
¶ 26. In this case, the court had reason to know that K.S. might be an Indian child as early
as February 2019. A court has reason to know that a child is an Indian child if “[a]ny participant
in the proceeding, officer of the court involved in the proceeding, Indian Tribe, Indian
organization, or agency informs the court that the child is an Indian child.” Id. § 23.107(c)(1).
The first page of the permanency case plan submitted to the court in February 2019 stated that
father reported that K.S. had Cherokee heritage, though she was not a registered member of the
tribe. Father was a participant in the proceeding at that point. Under the plain language of the
regulation and our case law, father’s statement was sufficient to give the court reason to know that
K.S. was an Indian child for purposes of the ICWA. See In re J.T., 166 Vt. at 182, 693 A.2d at
288 (holding father’s statement during state-requested psychological evaluation that his father was
“full-blooded Mohican” gave court reason to believe children were of Indian ancestry); see also In
re T.G., 272 Cal. Rptr. 3d 381, 393-95 (Cal. Ct. App. 2020) (holding that mother’s indication on
court form that she had Cherokee ancestry “unquestionably provided reason to believe Indian
children might be involved in these . . . proceedings”).
¶ 27. Mother argues that the failure to provide notice pursuant to the ICWA required the
termination order to be vacated. Alternatively, she argues that she had the right to withdraw
12
consent to termination because her consent was obtained under duress. See 25 U.S.C. § 1913(d).
Our case law is clear, however, that vacating an existing termination order “is not warranted where
the only error is failure to provide notice and there is no strong showing that the ICWA applies.”
In re J.T., 166 Vt. at 184, 693 A.2d at 289. Instead, the appropriate remedy is a remand for the
family division to give appropriate notice and determine if the child qualified as an Indian child
under the ICWA. See id. (concluding that failure of court in termination-of-parental-rights
proceeding to give notice required by ICWA required remand, but not necessarily reversal, of
termination order; if child was determined by tribe to be Indian, then termination order would be
vacated); In re M.C.P., 153 Vt. 275, 289, 571 A.2d 627, 635 (1989) (stating same); see also 25
C.F.R. § 23.137(b) (“Upon a showing that an action for foster-care placement or termination of
parental rights violated any provision of 25 U.S.C. 1911, 1912, or 1913, the court must determine
whether it is appropriate to invalidate the action.”). Consistent with the law, we stayed the appeal
and remanded the matter for the court to address the ICWA issue.
¶ 28. Mother argues that on remand, the court erred in concluding that DCF used due
diligence to identify and work with all of the tribes of which K.S. could possibly be a member.
After mother raised the ICWA issue in her brief in August 2020, DCF sent notice of the proceeding
and K.S.’s possible membership to the three federally recognized Cherokee tribes: the Eastern
Band of Cherokee Indians, the Cherokee Nation, and the United Keetoowah Band of Cherokee
Indians in Oklahoma. See Indian Entities Recognized by and Eligible to Receive Services from
the United States Bureau of Indian Affairs, 85 Fed. Reg. 5462-01 (Jan. 30, 2020). DCF also sent
the notice to the BIA Regional Director. A few weeks later, DCF sent a supplemental notice to
each of these entities that included additional familial information and corrected an error in the
first notices. The court found that the notices sent by DCF were adequate under the ICWA. Mother
argues, however, that the notices were insufficient because her attorney submitted information
describing the potential relevance of other tribes besides the Cherokee.
13
¶ 29. The record belies mother’s suggestion that the family division had reason to know
that K.S. could be a member of a tribe other than the Cherokee. After the first day of the ICWA
hearing, mother’s attorney filed a letter with the court clarifying that he had reason to believe K.S.
was an Indian child, but “d[id] not have actual, personal knowledge of definitive tribal status.” He
went on to state that he had spent significant time inquiring with “plausibly related tribes,” such
as the Chickasaw, Creek (Muscogee), Cheyenne, and Arapaho. However, he did not state that he
had any information suggesting that K.S. was actually a member of one of those tribes. Similarly,
the declaration mother submitted from a Native American genealogist stating that a family-lore
connection to the Cherokee can sometimes be a modern recharacterization of a connection to
certain other tribes who historically inhabited the same geographic area was simply too vague to
give the court reason to know that K.S. herself was a member of those tribes under the ICWA.
¶ 30. We recognize the difficulty presented when the only information provided to the
court is a vague statement of Indian ancestry. “Fortunately the courts are not required to become
experts in tribal genealogy.” In re J.T., 166 Vt. at 183, 693 A.2d at 289. Presumably because
parents often lack information about tribal affiliation, the ICWA and the relevant BIA regulation
require notice to be provided to the appropriate BIA Regional Director in addition to any identified
tribes. See 25 U.S.C. § 1912(a) (stating 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 in like
manner”); 25 C.F.R. § 23.11(a)-(b)(1) (explaining process for notifying BIA Regional Director).
The court found that DCF made a good-faith effort to identify and work with the tribes of which
there was reason to know K.S. could be a member by providing notice to the three federally
recognized Cherokee tribes as well as to the BIA Regional Director. This notice was sufficient to
comply with the ICWA. See 25 C.F.R. § 23.107(b) (requiring “due diligence to identify and work
with all of the Tribes of which there is reason to know the child may be a member (or eligible for
membership)”). “[T]he obligation is only one of inquiry and not an absolute duty to ascertain or
14
refute Native American ancestry.” In re Antoinette S., 129 Cal. Rptr. 2d 15, 25 (Cal. Ct. App.
2002).
¶ 31. Mother further claims that the court erred in excluding the testimony of her
proposed expert, a professor of indigenous law, from the ICWA hearing. We review the trial
court’s decision to admit or exclude evidence for abuse of discretion and will reverse “only where
that discretion is withheld or exercised unreasonably.” State v. Cameron, 2016 VT 134, ¶ 19, 204
Vt. 52, 163 A.3d 545. Mother sought to have her expert testify about the requirements of the
ICWA, whether she believed DCF’s actions complied with those requirements, and whether the
family division had reason to know that K.S. was an Indian child. The trial court acted within its
discretion in excluding the professor’s testimony because she would have been offering her
opinion on a question of law. See Town of Brighton v. Griffin, 148 Vt. 264, 271, 532 A.2d 1292,
1296 (1987) (“As a general rule, a witness may not give his opinion on questions of law, for the
determination of such questions is exclusively within the province of the court.” (citation
omitted)). Although mother proffered that the expert would testify about whether the information
provided by DCF was sufficient to allow the tribes to determine whether K.S. was a member, this
was also essentially a legal opinion about whether DCF complied with the ICWA regulations,
which set forth the specific information DCF was required to provide, if available. See 25 C.F.R.
§ 23.111(d)(2)-(3). It was for the court, not a witness, to determine whether DCF’s efforts
constituted due diligence under the ICWA.
¶ 32. Similarly, the court acted within its discretion in denying mother’s request to
subpoena unspecified vital records from Mississippi and Tennessee. As the court reasoned, the
ICWA does not mandate such discovery when a child has potential Indian heritage. Rather, the
ICWA requires DCF to give notice of “[a]ll names known (including maiden, married, and former
names or aliases) of the parents, the parents’ birthdates and birthplaces, and Tribal enrollment
numbers if known,” and “[i]f known, the names, birthdates, birthplaces, and Tribal enrollment
15
information of other direct lineal ancestors of the child, such as grandparents.” 25 U.S.C.
§ 23.111(d)(2)-(3). The ICWA’s repeated use of the phrase “if known” anticipates that some
information may be incomplete. Where the identity of the child’s tribe is unknown, the ICWA
simply requires notice to be sent to the BIA Regional Director, with “as much information as is
known regarding the child’s direct lineal ancestors.” 25 C.F.R. § 23.111(e); see also 25 U.S.C.
§ 1912(a). DCF complied with these requirements in this case; it provided the tribes and the BIA
with the information it had about K.S. and her father, as well as supplemental information from
publicly available databases regarding her ancestors. Given the vagueness of mother’s request for
discovery into other records and the lack of support in the ICWA for such discovery, the court did
not act outside of its discretion in denying her request.8
¶ 33. Mother argues that because the court had reason to believe that K.S. was an Indian
child, the court should have applied the substantive provisions of the ICWA, which require an
involuntary termination of parental rights to be supported by evidence beyond a reasonable doubt
and, in the case of voluntary termination, permit a parent to withdraw consent even after adoption
if consent was obtained by duress. 25 U.S.C. §§ 1912-1913. We agree that the court, once it had
reason to know of K.S.’s potential Indian ancestry in February 2019, should have treated her as an
Indian child and ensured compliance with the ICWA notice provision. It did not do so until after
remand, which was error. However, it is now clear that the ICWA did not apply to this case,
making the error harmless. See In re R.W., 2011 VT 124, ¶ 17, 191 Vt. 108, 39 A.3d 682 (“We
have employed the harmless error standard in termination cases, and, under that standard, an error
warrants reversal only if a substantial right of the party is affected.” (citation omitted) (quotation
omitted)); see also In re Antoinette S., 129 Cal. Rptr. 2d at 26 (holding that court violated ICWA
notice provision by conducting termination hearing less than ten days after BIA received notice
8
On appeal, mother does not challenge the court’s decision denying her request to obtain
genetic material from K.S.
16
and failing to make express finding regarding applicability of ICWA, but error was harmless
because ICWA clearly did not apply). The Cherokee tribes contacted by DCF responded that K.S.
was not a member of their tribes, and there was no evidence that K.S.’s biological parents were
members of a tribe. The court properly concluded based on this evidence that K.S. was not an
Indian child—a conclusion that mother does not challenge. See In re M.C.P., 153 Vt. at 284, 571
A.2d at 632 (affirming conclusion that child was not Indian child where evidence showed that
neither child nor child’s biological parents were members of federally recognized tribe).
Accordingly, the court’s initial failure to comply with the ICWA did not prejudice mother.9
Affirmed.
FOR THE COURT:
Chief Justice
9
Mother also argues that once the ICWA notice violation was brought to the court’s
attention, it was required “to determine whether it is appropriate to invalidate the action under the
standard of review under applicable law.” BIA, Guidelines for Implementing the Indian Child
Welfare Act, § K.3, 2016 WL 8738010. She argues that the court failed to comply with this
guideline because the court never made a determination that termination was in K.S.’s best
interests under 33 V.S.A. § 5114(a) or that continued custody by mother was likely to result in
serious emotional or physical damage to K.S. under 25 U.S.C. § 1912(f). As discussed above,
however, the evidence indicated that K.S. was not an Indian child, and therefore the substantive
provisions of the ICWA did not apply. Accordingly, the court was not required by the ICWA to
revisit the merits of the termination decision.
17