State of West Virginia ex rel. The Delaware Tribe of Indians, Intervenor v. The Honorable Stacy Nowicki-Eldridge, Judge of the Circuit Court of Boone County, K.A. and E.A., Intervenor and Prospective Kinship Placement of I.R., M.J.-1, and M.J.-2, Proposed Intervenors and Prospective Kinship Placement of I.R., B.D., Father of I.R., and I.R., Subject Child of the Petition Below ( 2023 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2023 Term
_______________ June 12, 2023
released at 3:00 p.m.
No. 22-787 EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. THE DELAWARE TRIBE OF INDIANS,
Intervenor below, Petitioner,
v.
THE HONORABLE STACY NOWICKI-ELDRIDGE, Judge of the Circuit Court of
Boone County, K.A. and E.A., Intervening Foster Parents of I.R., A.S., Intervenor and
Prospective Kinship Placement of I.R., M.J.-1 and M.J.-2, Proposed Intervenors and
Prospective Kinship Placement of I.R., B.D., Respondent Father of I.R., and I.R., Subject
Child of the Petition Below,
Respondents.
____________________________________________________________
Petition for a Writ of Prohibition
WRIT GRANTED
____________________________________________________________
Submitted: April 25, 2023
Filed: June 12, 2023
Jeremy B. Cooper, Esq. Patrick Morrisey, Esq.
Blackwater Law PLLC Attorney General
Aspinwall, Pennsylvania Andrew T. Waight, Esq.
Counsel for the Petitioner Assistant Attorney General
Charleston, West Virginia
Counsel for the Respondent DHHR
Matthew M. Hatfield, Esq.
Hatfield & Hatfield, PLLC
Madison, West Virginia
Counsel for Respondent Father B.D.
Allison K. Huson, Esq.
Law Office of Allison K. Huson
Huntington, West Virginia
Counsel for Intervening Foster Parents
K.A. and E.A.
Joseph H. Spano, Jr., Esq.
Pritt & Spano, PLLC
Charleston, West Virginia
Counsel for Intervenor A.S.
Adam Campbell, Esq.
Campbell & Smith PLLC
Charleston, West Virginia
Counsel for Proposed Intervenors M.J.-1
and M.J.-2
Moriah N. Myers, Esq.
Moriah Myers—Huntington
Huntington, West Virginia
Guardian ad litem
JUSTICE WOOTON delivered the Opinion of the Court.
JUSTICE ARMSTEAD dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
order raises new and important problems or issues of law of first impression. These factors
are general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
should be given substantial weight.” Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va.
12, 483 S.E.2d 12 (1996).
2. West Virginia does not recognize the Existing Indian Family
exception to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to -1963 (2021).
i
WOOTON, Justice:
Petitioner, The Delaware Tribe of Indians (“the Tribe”), seeks a writ of
prohibition precluding the Circuit Court of Boone County from enforcing its September
30, 2022, order denying the Tribe’s motion to transfer the underlying abuse and neglect
proceedings to the District Court of the Delaware Tribe (“the tribal court”) pursuant to the
requirements of the Indian Child Welfare Act (“ICWA” or “the Act”), 25 U.S.C. §§ 1901to -1963 (2021). In denying the Tribe’s motion to transfer the circuit court adopted a
minority doctrine known as the Existing Indian Family (“EIF”) exception to the ICWA,
which posits that the Act only applies when a child is removed from his or her custodial
Indian parent or from an existing “Indian family.” In the alternative, the circuit court found
that if the ICWA applied, good cause existed to deny the Tribe’s motion to transfer under
25 U.S.C. section 1911(b). The Tribe challenges each of these conclusions. Upon
consideration of the parties’ oral arguments and briefs, the appendix record, and applicable
authorities we find that the circuit court erred in denying the motion to transfer this action
to the tribal court. Accordingly, we grant the requested writ, and remand the case to the
circuit court with directions to enter an order transferring this matter to the tribal court.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying abuse and neglect proceedings began in January 2020 when
the West Virginia Department of Health and Human Resources (“DHHR”) filed an abuse
1
and neglect petition alleging that I.R.’s 1 mother, K.R. (“the mother”), abused drugs, was
homeless, and could not provide for the then thirteen-month-old child, I.R. At the time the
petition was filed the identity of I.R.’s father was unknown, but the petition alleged that he
had abandoned the child. Upon the filing of the petition the circuit court ordered I.R.
removed from the mother’s custody. At that time the child was placed with Respondent
Foster Parents E.A. and K.A. (“foster parents”). Ultimately the mother stipulated to the
allegations of abuse and neglect contained in the petition and was subsequently adjudicated
as an abusing and neglectful parent. The circuit court granted the mother a post-
adjudicatory improvement period.
The DHHR later moved to revoke the mother’s improvement period, noting
her lack of compliance with any requirements set out in the case plan. At a hearing
convened on July 1, 2020, the circuit court granted the DHHR’s motion. The court set a
dispositional hearing on the mother’s rights for August 5, 2020, and at that hearing
ultimately terminated her parental rights to the child.
At the July 1, 2020, hearing counsel for the unknown father moved for
paternity testing of Respondent Father B.D. (“Respondent Father”), a putative father of the
child. The court granted that motion, and testing confirmed that Respondent Father was
1
Consistent with our practice in cases involving sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235
W. Va. 254, 773 S.E.2d 20 (2015).
2
the biological father of the child. In a subsequent hearing on January 4, 2021, the circuit
court dismissed the unknown father from the case and appointed counsel for Respondent
Father. In that order the circuit court found that there were no allegations against
Respondent Father and that he was unaware of the child’s existence until the time of the
paternity test; therefore, he was determined to be a “non-maltreating parent in this matter.”
Accordingly, the court ordered the DHHR to begin the process of unifying Respondent
Father and the child, and to begin supervised visits between the two.
The DHHR began the reunification process but was hindered by Respondent
Father B.D.’s residence in the State of Minnesota, which required the DHHR to facilitate
reunification via the Interstate Compact for the Placement of Children (“ICPC”). See W.
Va. Code §§ 49-7-101, 102 (2018). The DHHR submitted its ICPC request to the
Minnesota Department of Human Services (“Minnesota DHS”) on January 25, 2021,
seeking a home study of Respondent Father’s home. It is apparent from the record that
Respondent Father cancelled his initial home study with the Minnesota DHS and then
failed to respond to calls, letters, or text messages from that agency until late March 2021.
Finally, he sent a text message to the Minnesota DHS stating that he wished to withdraw
from the ICPC process due to ongoing relationship issues and his belief that he was unable
to parent I.R. alone. At that time, Respondent Father requested that the Minnesota DHS
contact his sister, A.S., about caring for the child.
3
The DHHR was not formally notified of these developments until April
2021. However, in March 2021 A.S. contacted the DHHR to inquire about placement of
the child. Thereafter a multidisciplinary team (“MDT”) meeting convened, at which A.S.
was present. At the meeting the DHHR advised all parties that I.R. had been in foster care
for approximately fourteen months and had bonded to her foster family. Nevertheless, the
DHHR submitted an ICPC request to the Minnesota DHS in April 2021 requesting an
evaluation of A.S. The DHHR also began supervised visits between A.S. and the child.
In December 2021, A.S. moved to intervene in the abuse and neglect
proceedings as a possible kinship placement for I.R., and Respondent Father informed the
DHHR that he was a member of the Tribe. However, when the DHHR requested
verification—specifically, a copy of Respondent Father’s tribal membership card—
Respondent Father indicated that the card was lost. During December 2021 the Tribe
became aware of these proceedings. 2
2
The appendix record is largely devoid of any information regarding the period
from April 2021 to December 2021, but the parties agree that efforts were underway to
place I.R. with either A.S. or the proposed-intervenor cousins, M.J.-1 and M.J.-2. No
hearings were held before the circuit court during that time.
Further, the record does not indicate how the Tribe came to be notified of these
proceedings in December 2021, but it is undisputed that such notification did not come
from the DHHR. Despite this, we have no trouble concluding that the Tribe had actual
notice of the proceedings from December 2021 onward. See In re N.R., 242 W. Va. 581,
590, 836 S.E.2d 799, 808 (2019) (explaining that actual notice constitutes substantial
compliance with the notice requirements of the ICWA at 25 U.S.C. § 1912(a)).
4
In January 2022, the DHHR filed an amended abuse and neglect petition
alleging that Respondent Father abandoned the child insofar as he withdrew from the ICPC
process and ceased communications with the DHHR. The parties then convened for an
MDT meeting to address these allegations, as well as concerns the DHHR had with A.S.’s
ICPC report. 3 At the MDT meeting Respondent Father indicated that he wished to
voluntarily relinquish his parental rights.
The circuit court convened a hearing on January 31, 2022, at which it granted
A.S.’s motion to intervene, as well as a pending motion to intervene from the foster parents.
At this hearing Respondent Father requested that the DHHR withdraw the amended abuse
and neglect petition so he could complete the process of voluntarily relinquishing his
parental rights. The DHHR agreed to do so, and subsequently withdrew the amended
petition.
The DHHR filed a second amended petition on March 1, 2022, after
Respondent Father failed to complete the voluntary relinquishment process. The second
amended petition included the same allegations: that Respondent Father had abandoned the
3
The Minnesota DHS approved A.S. as a “relative-unlicensed caregiver” but the
report failed to include a background check on A.S.’s husband. The DHHR found this
troubling, given A.S.’s prior disclosure that her husband had a criminal history, and
because the DHHR had been made aware of a domestic incident during the proceedings
which resulted in the issuance of a protective order against the husband. Despite this, A.S.
indicated that her husband would be returning to the home to continue planned home
renovations.
5
child by withdrawing from the ICPC process, by failing to visit with the child, and by
failing to maintain contact with the DHHR or the child. Before a hearing could be held on
this petition, Stacy Emert—a representative of the Tribe—emailed the DHHR, the guardian
ad litem (“GAL”) and other parties stating that she had been unable to get in contact with
the DHHR. A DHHR supervisor responded to this email and advised Ms. Emert to contact
the deputy circuit clerk about participation in these proceedings. When Ms. Emert was
unsuccessful in doing so, the DHHR personally notified both the deputy clerk and the
circuit judge of the Tribe’s contact, and thereafter facilitated the Tribe’s participation in
subsequent hearings.
The next hearing took place on March 7, 2022. The Tribe appeared by
Oklahoma counsel Cynthia Burlinson, who reiterated that Respondent Father had tribal
ancestry and intimated that the Tribe might seek to intervene pursuant to the ICWA. At
this point Respondent Father expressed his surprise at the Tribe’s appearance in this matter
and reiterated his desire to voluntarily relinquish his parental rights. The circuit court
continued the matter to allow Respondent Father the opportunity to complete the voluntary
relinquishment process. Before adjourning, however, the circuit court instructed the parties
that anyone seeking to participate in this matter should file motions to intervene quickly
and obtain local counsel if necessary. 4
4
In this regard, the Tribe argues that the circuit court erred in requiring it to obtain
local counsel. We need not address this argument as the Tribe does not indicate how, if at
6
Once again Respondent Father did not complete the voluntary
relinquishment paperwork, so the circuit court scheduled the next hearing for June 13,
2022. At that time the court instructed counsel to file briefs addressing the applicability of
the ICWA to this case, and advised the parties that the issue would be addressed at a hearing
on August 15, 2022. The Tribe obtained local counsel and on August 9, 2022, moved to
intervene in these proceedings. Prior to filing that motion the Tribe petitioned the tribal
court to take jurisdiction in this matter, and the tribal court agreed to do so, provided that
the circuit court enter an order transferring the case.
At the August hearing the circuit court granted the Tribe’s motion to
intervene. It then heard argument from all parties, including the Tribe, on the applicability
of the ICWA. Thereafter, on September 30, 2022, the court entered an order concluding
that the ICWA was inapplicable to these proceedings because, although I.R. is an “Indian
child” under the Act, she was not removed from “an intact Indian family” insofar as she
was not removed from Respondent Father’s custody or the home of another Indian family.
In so ruling, the circuit court adopted the Existing Indian Family (“EIF”) exception to the
all, it was prejudiced by this requirement. That said, we note that the Bureau of Indian
Affairs has declined to require that tribes be permitted to appear without local counsel, but
has stated that the agency “agrees with the practice adopted by the State courts that permit
Tribal representatives to present before the court in ICWA proceedings regardless of
whether they are attorneys or attorneys licensed in that State.” Indian Child Welfare Act
Proc. (“ICWA Proc.”), 81 Fed. Reg. 38778, 38799 (June 14, 2016). This Court has
previously permitted a non-attorney Tribal representative to participate in child custody
proceedings governed by the ICWA. See N.R., 242 W. Va. 581, 836 S.E.2d 799.
7
ICWA. In the alternative, the circuit court found that, even if the ICWA applied, the
proceedings were at such an advanced stage that “good cause” existed under 25 United
States Code section 1911(b) to deny the Tribe’s motion to transfer. Based upon these
conclusions, the circuit court entered an order on September 30, 2022, denying the Tribe’s
motion to transfer this action to the tribal court. This petition for writ of prohibition
immediately followed.
II. STANDARD OF REVIEW
This Court has set forth the following standard of review in determining
whether a writ of prohibition shall issue:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as
a useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
8
III. ANALYSIS
The Tribe presents two arguments to this Court: that the circuit court
exceeded its legitimate powers in (1) adopting the EIF exception, and (2) that the circuit
court erred in finding good cause existed to deny the Tribe’s motion to transfer to tribal
court. 5 We address each of these arguments in turn.
A. Existing Indian Family Doctrine
Preliminarily, the ICWA applies to any “child custody proceeding” involving
an “Indian child.” 25 U.S.C. § 1903(1); see also id. § 1911 (explaining that Indian tribes
shall have exclusive jurisdiction over child custody proceedings for children residing or
domiciled within the reservation of that tribe, while State courts and tribal courts exercise
concurrent jurisdiction over child custody proceedings involving children not residing or
domiciled within a reservation). The ICWA defines a “child custody proceeding” to
include proceedings dealing with foster care placement, termination of parental rights, pre-
adoptive placement, and adoptive placement, id. § 1903(1), and defines “Indian child” to
5
The Tribe also argued that the circuit court erred in concluding, in passing, that
applying the ICWA to this matter would constitute racially motivated discrimination, as
any decision would be based on the Indian heritage of I.R. Because we conclude that the
circuit court should have transferred this matter to the tribal court, we find it unnecessary
to address this argument; however, we note that the Supreme Court of the United States
has plainly stated that “federal legislation with respect to Indian tribes, although relating to
Indians as such, is not based upon impermissible racial classifications. Quite the contrary,
classifications expressly singling out Indian tribes as subjects of legislation are expressly
provided for in the Constitution and supported by the ensuing history of the Federal
Government’s relations with Indians.” United States v. Antelope, 430 U.S. 641, 645 (1997)
(footnote omitted).
9
mean “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). It is undisputed that these proceedings
involve not only foster and pre-adoptive placement, but also the termination of parental
rights; it is equally clear that I.R. is an Indian child insofar as she is the biological child of
a member of the Tribe and is eligible for membership in the Tribe. Id. Plainly, the ICWA
is applicable to this case.
In arriving at a contrary conclusion, the circuit court adopted a minority
doctrine, the EIF exception. This exception originated in the Supreme Court of Kansas,
which explained that the ICWA is inapplicable where a child has no connection to his or
her Indian parent, has not been in the custody of the Indian parent, and did not reside in a
home with any other Indian family. Matter of Adoption of Baby Boy L., 643 P.2d 168 (Kan.
1982), overruled by In re A.J.S., 204 P.3d 543 (Kan. 2009). In essence, the EIF exception
permits a state court to circumvent the requirements of the ICWA if the court concludes
that the Indian child is being removed from “a family with [no] significant connection to
the Indian community.” Michael J., Jr. v. Michael J., Sr., 7 P.3d 960, 963 (Ariz. Ct. App.
2000). The Tribe argues that the circuit court’s adoption of this exception was clearly
erroneous. We agree.
From the time of its inception the EIF exception has come under intense
scrutiny in various jurisdictions across the nation. Although the exception was adopted
10
and applied in approximately twenty states in the 1980s and 1990, in recent years all but
seven jurisdictions 6 presented with the exception have either repudiated it—including the
very court that created it 7—or rejected it in the first instance. 8 While the reasoning of the
courts rejecting the EIF exception varies, we find especially persuasive the explanation of
the Court of Appeals of Virginia as to why the EIF exception must be rejected. In
Thompson v. Fairfax County Department of Family Services, 747 S.E.2d 838 (Va. Ct. App.
2013), that court explained:
We decline to recognize the [EIF] 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
6
These jurisdictions include only six states (Alabama, Indiana, Kentucky, Missouri,
Nevada, and Tennessee) and a single appellate district in California. See, e.g., S.A. v.
E.J.P., 571 So. 2d 1187 (Ala. Civ. App. 1990); In re Adoption of T.R.M., 525 N.E.2d 298(Ind. 1988); Rye v. Weasel, 934 S.W.2d 257 (Ky. 1996); C.E.H. v. L.M.W., 837 S.W.2d
947 (Mo. Ct. App. 1992); In re N.J., 221 P.3d 1255 (Nev. 2009); In re Morgan, No. 02A01-
9608-CH-00206, 1997 WL 716880 (Tenn. Ct. App. Nov. 19, 1997); In re Alexandria Y.,
53 Cal. Rptr. 2d 679 (Cal. Ct. App. 1996) (4th Dist.).
7
Kansas laid the EIF doctrine to rest in 2009. In re A.J.S., 204 P.3d at 551 (“[W]e
hereby overrule Baby Boy L. . . .and abandon its existing Indian family doctrine.”).
8
See, e.g., In re Adoption of T.N.F., 781 P.2d 973, 977 (Alaska 1989); Michael J.,
Jr. 7 P.3d at 963-64; 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); 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), rev’d
on other grounds, 881 P.2d 795 (Or. 1994); Adoptive Couple v. Baby Girl, 731 S.E.2d 550,
558 n. 17 (S.C. 2012), rev’d on other grounds, 570 U.S. 637 (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).
11
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., 27 A.D.3d 34, 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 [Mississippi Band of
Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)], “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 [EIF] Exception takes an
unnecessarily restrictive approach to ICWA, one that would
frustrate Congress’s intent to protect tribal interests.
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 [EIF] 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., 27 A.D.3d at 49, 805 N.Y.S. at 324
(quoting In re Alicia S., 65 Cal.App.4th 79, 76 Cal.Rptr.2d 121,
128 (1998)). “Since ICWA was passed, in part, to curtail state
authorities from making child custody determinations based on
misconceptions of Indian family life, the [EIF] exception,
which necessitates such an inquiry, clearly frustrates this
purpose.” Id. (citations omitted).
Thompson, 747 S.E.2d at 847. We agree with this reasoning; the EIF exception is plainly
incompatible with the explicit provisions of the Act and contrary to Congress’s stated intent
12
in passing the Act, namely the protection of Indian tribes and their resources, including
their children. See 25 U.S.C. § 1901.
Our decision in this regard is further supported by guidance from the Bureau
of Indian Affairs (“BIA”) set forth in its 2016 BIA Guidelines pertaining to application of
the Act’s provisions. Guidelines for Implementing the Indian Child Welfare Act (“2016
Guidelines”), 25 C.F.R. §§ 23.1 to -23.144 (2016). The 2016 Guidelines state, in relevant
part:
In determining whether ICWA applies to a proceeding,
the State court may not consider factors such as the
participation of the parents or the Indian child in Tribal
cultural, social, religious, or political activities, the relationship
between the Indian child and his or her parents, whether the
parent ever had custody of the child, or the Indian child’s blood
quantum.
Id. § 23.103(c). This unequivocal statement plainly dispels any notion that the EIF
exception is compatible with the ICWA. Accordingly, we join the “swelling chorus of
[jurisdictions] affirmatively reject[ing] the EIF exception[,]” ICWA Proc., 81 Fed. Reg.
38778, 38802 (June 14, 2016), and hold that West Virginia does not recognize the Existing
Indian Family exception to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to -1963
(2021). Accordingly, the circuit court erred in adopting the EIF exception and
subsequently relying on that exception to determine that the ICWA was inapplicable to this
case.
13
B. Good Cause to Deny the Motion to Transfer to Tribal Court
Despite its conclusion that the ICWA did not apply to the instant matter, the
circuit court proceeded to determine, in the alternative, that good cause existed to deny the
Tribe’s motion to transfer this case to tribal court because the underlying proceedings were
at an “advanced stage.” The circuit court explained that this case had been pending for
more than three years at the time the Tribe made its motion to transfer, and thus it would
be disingenuous to argue that the proceedings were not at an advanced stage. As it did
below, the Tribe argues before this Court that the proceedings are not at an advanced stage
insofar as Respondent Father has not even been adjudicated as an abusing or neglectful
parent. After a thorough review of the relevant authorities, we agree with the Tribe that
the circuit court erred in concluding that good cause existed to deny the Tribe’s motion to
transfer.
The Tribe’s motion to transfer this matter to the tribal court was made
pursuant to 25 United States Code section 1911(b), which provides:
In any State court proceeding for the foster care
placement of, or termination of parental rights to, an Indian
child not domiciled or residing within the reservation of the
Indian child’s tribe, the court, in the absence of good cause to
the contrary, shall transfer such proceeding to the jurisdiction
of the tribe, absent objection by either parent, upon the petition
of either parent or the Indian custodian or the Indian child’s
tribe: Provided, That such transfer shall be subject to
declination by the tribal court of such tribe.
Succinctly put, this provision requires a state court to transfer a child custody proceeding
to tribal court unless: (1) a parent objects to the transfer; (2) the tribal court declines to
14
accept the transfer; or (3) “good cause” exists to deny the transfer. See id. The first
exception is inapplicable insofar as Respondent Father supports the Tribe’s motion, and
I.R.’s mother’s parental rights were terminated well before the motion to transfer was
made. The second exception is likewise inapplicable because the tribal court has accepted
jurisdiction of this case contingent upon the circuit court’s entry of an order transferring
the matter. The circuit court relied solely upon the third exception—that there was “good
cause” to deny transfer—in denying the Tribe’s motion.
The ICWA does not define “good cause,” but the Code of Federal
Regulations explicitly provides what cannot be considered in making a good cause
determination. Specifically, 25 Code of Federal Regulations section 23.118(c) provides:
In determining whether good cause exists, the court must not
consider:
(1) Whether the foster-care or termination-of-parental
rights proceeding is at an advanced stage if the Indian
child’s parent, Indian custodian, or Tribe did not
receive notice of the child-custody proceeding until an
advanced stage;
(2) Whether there have been prior proceedings involving
the child for which no petition to transfer was filed;
(3) Whether transfer could affect the placement of the
child;
(4) The Indian child’s cultural connections with the Tribe
or its reservation; or
(5) Socioeconomic conditions or any negative perception
of Tribal or BIA social services or judicial systems.
15
(Emphasis added.) In finding that subsection (c)(1) did not prohibit the circuit court from
considering the “advanced stage” of this proceeding, the court relied upon a now-defunct
provision in the 1979 BIA Guidelines, which enumerated a list of situations that did
constitute “good cause” to prevent transfer. Guidelines for State Cts.; Indian Child Custody
Proc. (“1979 Guidelines”), 44 Fed. Reg. 67584 (Nov. 26, 1979). That list indicated that
good cause to deny transfer existed where “[t]he proceeding was at an advanced stage when
the petition to transfer was received and the petitioner did not file the motion to transfer
promptly after receiving notice of the hearing.” Id. at 67591. In essence, this language
provides that a state court may deny a motion to transfer where the moving party could
have moved to transfer but delayed doing so, thus effectively sitting on its right to change
venue. See id. Before this Court several of the parties cited this guidance as a basis for
arguing that the Tribe is not entitled to transfer because it knew of these proceedings in
December 2021 but did not move to transfer until eight months later in August 2022. What
the circuit court and the parties fail to recognize is that the 1979 Guidelines were explicitly
abrogated and replaced by the BIA when it promulgated the 2016 Guidelines. See
Guidelines for Implementing the Indian Child Welfare Act, 81 Fed. Reg. 96476 (Dec. 30,
2016) (“The [2016] guidelines replace the 1979 and 2015 versions[.]”). Therefore, we do
not find the 1979 Guidelines persuasive, nor do we rely upon any guidance contained
therein.
In discussing its decision to abrogate the 1979 Guidelines the BIA provided
a detailed explanation as to why it specifically displaced the provision upon which
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respondents rely. ICWA Proc., 81 Fed. Reg. at 38823. First, the BIA explained that
motions to transfer to tribal court are to be treated as a “modified doctrine of forum non
conveniens,” or a motion to change venue pursuant to 28 United States Code section 1404
(2021), which may be granted at any time during the pendency of the proceedings. Id.
(“The mere passage of time is not alone a sufficient reason to deny a motion to transfer
pursuant to 28 U.S.C. § 1404; nor is it for 25 U.S.C. § 1911(b).”); see also Matter of Appeal
in Pima Cnty. Juv. Action No. S-903, 635 P.2d 187, 191 (Ariz. Ct. App. 1981) (“[25 U.S.C.
§ 1911(b)] was intended to permit a state court to apply a modified doctrine of forum non
conveniens.”). Second, the BIA noted that the parents or the Tribe may have legitimate
interests in delaying their motion to transfer the case to tribal court. ICWA Proc., 81 Fed.
Reg. at 38823. For example, the BIA notes that the Tribe or parents may have no reason
to transfer the case during the “foster care” phase, where the child has been only
temporarily removed from the home with a goal of reunification with the parents, because
the expectation is the child will be returned to his or her parents. Id. (citing In re Interest
of Zylena R., 825 N.W.2d 173 (Neb. 2013)). However, once the State signals it intends to
terminate parental rights, the Tribe and parents have a legitimate interest in having the
matter decided by a tribal court. Id. Said the BIA:
The Tribe or parent rationally decides that seeking
transfer of a foster-care proceeding would not support the goal
of reunification of the Indian child with her parent(s). But once
the State abandons this goal, and seeks to terminate parental
rights, the Tribe’s or parent’s calculus might reasonably
change. If time limits were imposed by moving to transfer,
Tribes might be forced to seek transfer early in a foster-care
proceeding, even if that outcome does not facilitate
reunification. The [BIA] believes that this would undermine
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the goals and intent of ICWA, and not produce the best
outcomes for Indian children.
For these reasons, the final rule provides that a request
for transfer may be made at any stage within each proceeding.
Id. (Emphasis added.)
It is critical to note that the ICWA divides cases into different phases,
designated as proceedings (e.g., the “foster care” phase where reunification is the goal, and
the “termination” phase where a parent’s rights will be terminated and the child placed in
an adoptive home). See 25 C.F.R. § 23.118 (separating “foster-care proceedings” from
“termination-of-parental-rights proceedings” for purposes of determining whether an
individual proceeding is at an advanced stage). Thus, while the overarching length of a
single abuse and neglect case may span many months, or even several years, the pertinent
question is how advanced the current “proceeding” is within the case. ICWA Proc., 81
Fed. Reg. at 38825 (“The final rule also clarifies that ‘advanced stage’ refers to the
proceeding, rather than the case as a whole. Each individual proceeding will culminate in
an order, so ‘advanced stage’ is a measurement of the stage within each proceeding.”).
This means that the circuit court should not have based its decision on the fact that the case
had been ongoing since January 2020—a span of nearly three-and-a-half years. Instead,
the circuit court should have only considered whether the current phase, or proceeding, was
at an advanced stage.
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In our review of the appendix record this case has involved at least three
individual “proceedings” as contemplated by the ICWA: (1) termination of the mother’s
parental rights; (2) foster care during attempted unification with Respondent Father; and
(3) termination of Respondent Father’s parental rights. The first proceeding began in
January 2020 when I.R. was removed from her mother’s custody and the DHHR sought
termination of the mother’s parental rights; that proceeding concluded in August 2020
when the mother’s rights were terminated. The next proceeding encompassed the DHHR’s
myriad efforts to unify I.R. with Respondent Father or to place her with other relatives,
such as A.S.. That proceeding spanned approximately one year and ended in January 2022
when the DHHR filed an amended abuse and neglect petition alleging that Respondent
Father had abandoned the child. The next “proceeding,” i.e., termination of Respondent
Father’s parental rights, began with the filing of DHHR’s second amended petition in
March 2022.
The proceeding regarding termination of the parental rights of Respondent
Father was not at all advanced at the time the Tribe filed its motion to transfer the
proceeding. Respondent Father had not been adjudicated; indeed, neither a preliminary
nor adjudicatory hearing had even been scheduled. While five months passed between
March 2022 and the Tribe’s motion to transfer in August 2022, the record reveals that those
months were devoted to ascertaining whether the ICWA applied to this case, and not to
any consideration of the merits of the amended petition. In short, there was nothing
“advanced” about this proceeding when the Tribe moved to transfer. Accordingly, we
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conclude that the circuit court clearly erred in determining that good cause existed to deny
transfer of this matter to the tribal court. See Syl. Pt. 4, in part, Berger, 199 W. Va. at 14-
15, 483 S.E.2d at 14-15 (explaining that a writ of prohibition may issue where the lower
tribunal’s order is clearly erroneous as a matter of law).
IV. CONCLUSION
For the reasons stated herein, we grant the Tribe’s petition for writ of
prohibition and prohibit enforcement of the circuit court’s September 30, 2022, Order
Denying Transfer. We remand this matter to the circuit court with directions to enter an
order transferring jurisdiction in this action to the District Court of the Delaware Tribe.
Writ Granted.
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