Dinwiddie DSS v. Nunnally

VIRGINIA:
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Dinwi e Department of Social Services, Appellant,
aga st Record No. 131584
Court of Is Nos. 1947 12-2,
1948 12 2, and 1949-12-2
Renee 1 Nunnally, et al., Appellees.
Upon an appeal from a
judgment rendered by t Court
of als of Virginia.
Upon consideration of the record, briefs, and ument
of counsel, the Court is of the opinion for the reasons stated
in the unpublished memorandum opinion of the Court of s
(Renee Nunnall et al. v. Dinwi rtment of Social
Services, Record Nos. 1947-12-2, 1948-12 1, 1949-12-2) in this
matter dated September 10, 2013, the judgment of the Court of
Appeals will be affirmed.
Renee Bagley Nunnally ("mother") and Timothy B. Nunnally
( II
her") are the rents of young twin girls. mother is a
member of the Citizen Potawatomi Nation ("Tribe"), a rally
recognized Indian Tr that is locat in Shawnee, Oklahoma. The
father is not of Indian descent and is not a member of any tribe.
The children are either members of, or eligible to members of,
the Tr
The children were removed from their parents' home and placed
in the temporary custody of a relative in November 2010, while
se ces were offe to their parents. However, the parents
failed to comply with the requirements set by the Juvenile and
Domestic Relations District Court for Dinwi e County ("J&DR
court"), and cust of the children was transferred to the
Dinwiddie rtment of Social Services ("DDSS") in April 2011.
In June 2011, DDSS filed petitions for foster care plans with
the goal of adoption and to terminate t Nunnallys' parental
rights. T Tr then filed a motion to intervene, which was
granted on S r 16, 2011. The Tr also filed a motion to
transfer juri ction to tribal court r the Indian Child
Welfare Act of 1978 ("ICWA"), which J&DR court considered on
October 14, 2011, along with DDSS' itions to terminate the
mother and fat r's parental rights. The J&DR court denied the
petitions to t nate parental rights, rently due to the
unavailability of a required expert tness.
DOSS and the guardian ad litem appointed to represent
children filed t ly appeals in the Cir t Court of Dinwiddie
County ("trial court") on November 1, 2011. The Tribe filed a
notice of ervent on and a motion to transfer the case to tr" 1
court on De 12, 2011. Both parents also filed separate
motions see ng to transfer the matter to tribal court.
The trial court held a hea ng on t motion to transfer,
during which DOSS and the guardian litem both objected to
transferring the case to tribal court. On August 29, 2012, the
trial court Id that good cause exis not to transfer
proceeding to tr 1 court. The trial court determined the
case was at an advanced stage when the transfer petition was
received. The trial court also found that the case could not
adequately be presented in tribal court without undue ha ip to
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the parties or witnesses, and that to remove t children from
their current foster horne would be extremely harmful to them.
trial court subs ntly terminated the r and father's
parental rights.
The mot ther filed separate Is to the Court of
Appeals of Vi inia challenging the trial court's holding that good
cause existed not to transfer and the trial court's decision to
terminate their rental rights.
The Court of Is issued an unpublished memorandum opinion
in which it revers the judgment of the trial court on the mot
to transfer, vacat order terminat the parental rights of
the mother and fat r, and remanded r r proceedings
consistent with the published opinion it s taneously relea
the case of son v. Fairfax Count 't of Famil Servs. , 62
Va. App. 350, 747 S.E.2d 838 (2013). In the Court of
Appeals rejected the traditional "best interests of the child t st H
in favor of the more limited test invol an immediate serious
emotional or ical harm, or a substantial risk of such harm, to
a child aris from the trans to a tribal court. Id. at 374
75, 747 S.E.2d at 850.
We affirm the Court of Appeals' ision to reverse and remand
this matter to t trial court in 1 of the standards
articulated son.
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is order shall be certified to the Court of Is of
Vir a and to the Circuit Court of Dinwi e County, and shall be
i the Virginia Reports.
JUSTICE MILLETTE, with whom CHIEF JUSTICE KINSER and JUSTICE POWELL
oin, c oncurring in part and dissenting in rt.
major y opinion disregards prece rom the Supreme
Court 0 the United States, substitutes its j nt for that of
ess, and embraces an entirely novel analysis that is, upon
in ction, i stinguishable from a st rd that the majority
op on concedes is inappropriate. While I jo in that portion of
the majority opinion directing remand of t s matter to the trial
court, for t reasons explained below, I re fully dissent from
that ion approving the incorporation of a fied "best
erests of the child" consideration into rely jurisdictional
" cause" analysis in considering r a matter should be
transfe to a tribal court.
I. Discussion
A. Indian Child Welfare Act
At issue is the Indian Child Welfare Act of 1978 (the "ICWA"),
25 U.S.C. § 1901 et seq., passed by t United States Congress over
35 years ago. The ICWA is designed to otect the best interests
of I an children." 25 U.S.C. § 1902. As relevant to this appeal,
the ICWA accomplishes this goal by p ding for tribal court
juri ction over child custody ngs involving an Indian
child rsuant to a "dual jurisdict scheme" set forth in 25
4
U.S.C. § 1911. Mississ i Band of Choctaw Indians v. HoI
~~~~~~--~~~~~~~~~~~~~~~~~~~~~
490 U.S. 30, 36 (1989).
Section 1911(a) "establishes exclusive urisdiction in
tribal courts ngs conce an Indian child who resides
or is domiciled wi the reservation of such tribe, as well as r
wards of tribal courts regardless of le." 490 U.S.
at 36 (emphasis d) (internal quotation marks omitted). Section
1911(a) does not ly to this case.
Section 1911(b) "creates concurrent but
jurisdiction in t case of [Indian] i n not domi on the
reservation" for proceedings involving ster care placement
termination of rental rights. Hol ield, 490 U.S. at 36 ( sis
added). Section 1911(b) applies to this case.
Section 1911 (b) rmits "any [s] tate court proceeding the
ster care placement of, or terminat of parental ri s to, an
Indian child" to be "transfer[red] to the jurisdiction of the
tribe." Four statutory requirements must be met for such a transfer
to occur: (1) "ei r parent [ ,] or t Indian custodian [ ,] or the
Indian child ' s t " must petition r a transfer; (2) neither
parent can object to the transfer; (3) the tribal court to which the
case would be transferred must not ine the transfer; and
(4) there must an "absence of good cause to the contrary." 25
U.S.C. § 1911(b) Only this fou requirement is at issue in this
appeal, and t majority opinion errs in approving the Court of
Appeals' determination of what consi rations are app iate for
the "good cause" ysis.
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B. a "Best Interests of
Anal is
Today, the majority opinion summa ly approves of the Court of
Appeals' explanation of what a court should consider in the "good
cause" analysis, as set forth in on v. Fairfax
rtment of Famil Services, 62 Va. . 350, 747 S.E.2d 838
(20 3). I sagree th one si ificant aspect of son
decision. The Court of als incorporated a modified "best
interests of the ild" consi ration o the ly juri ctional
"good cause" analysis. Id. at 373-77, 747 S.E.2d at 850-52. In
particular, the majority opinion oves of a court's consideration
of whether "clear and convincing evidence [establishes] that
transferring the case to a tribal court would cause, or would
present a s tantial risk of causing, immediate serious emotional
or physical damage to child." Id. at 376, 747 S.E.2d at 85 .
I rating this consideration into the Section 191 (b) "good
cause" anal is is error for t following reasons.
1. A "Best Interests" Consideration Contravenes
ted States Supreme Court Precedent
The Supreme Court of United States has noted that 25 U.S.C.
1
§ 1911 is a jurisdict 1 statute. HoI field, 490 U.S. at 36. As
such, Section 1911(b) only allows a state court to determine "who
should make the [ ter care or parental rights] determination
1 HoI ield res d legal issues pertaining to Section 1911(a).
See 490 U.S. at 42 54. Nevertheless, the Supreme Court's ral
scussion of 25 U.S.C. § 1911 lies w equal rce to Section
1911 (b) .
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concerning [Indian] children." Id. at 53. Notably, a state court
cannot use Section 1911(b) to decide substantive issues, such as
"what the outcome of [the foster care or rental rights]
termination shou be. " Id. Instead, a state court "must r
to experience, wi and compassion of the" tribal court,
because it is the tr 1 court that must rule on the substant
issues once juris ction is transfer Id. at 53-54 ernal
ion marks omitted); see also
Affiliated Tribes of the Fort Berthold Reservation, 27 F.3d 1294,
1301 (8th Cir. 1994) ("Absent any indication of bias, we will not
sume the Tribal Court to be anything other than competent and
ial.").
The "best interests" consideration contravenes this recti on
by allowing a state court to second guess a tribal court's
termination of substantive issues. This is because the actual act
of transferring juris ction is not, in and of itself, something
that can cause "serious emotional or physical damage to the child."
62 Va. . at 376, 747 S.E.2d at 851. Juris ction,
be a "court's r to decide a case or issue a decree," is an
stract concept, real world consequences of trans rring
jurisdiction require only that parties a in front of, papers
be filed with, a f rent tribunal. Black's Law Dicti 980
(10th ed. 2014); see Kern Oil & Refini Co. v. Tenneco 1 Co., 840
F.2d 730, 734 (9th Cir. 1988) (discussing the effects of
urisdiction be transferred between ral district
llate courts)
The act of transferring juris ct ,then, cannot harm a
ld. Instead, only substantive isions subs to
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transfer of juris ct - such as a tribal court's determination
that the Indian child should be moved to a new adoptive family
before ultimate resolution of the proceedings fall within the scope
of a "best interests" consideration. The Court of Appeals
recognized is ct when it held that the focus "must remain on
imrnediate serious emotional or physical damage flowing from the
transfer self." 62 Va. App. at 376, 747 S.E.2d at 851.
However, the Court of Appeals then compounded its error when it
cons ide as relevant to this determination "whether Tr is
willing to allow the child to stay her current environment,
pending adjudication of the case on merits of termination
and/or placement." Id. These post-transfer, substant decisions
are the very tribal court determinations that a state court cannot
second guess. See 201 ield 490 U.S. at 53-54.
2. Congress has Already Spoken to an I an Child's
"Best Interests" in Jurisdictional Scheme
To extent a "best interests" consideration is relevant, it
has already been decided by Congress enacting the ICWA. Congress
made clear its reasons for enacting the ICWA in its "Congressional
findings," stating specifically: "the States, [when] exercising
their recogni jurisdiction over Indian chi custody proceedings
through administrat and judi al bodies, have often failed to
recognize essential tribal relations of Indian people and the
cultural and social standards prevailing in Indian com~unities and
families." 25 U.S.C. § 1901(5). The ICWA thus "protect[s] the
rights of [an] Indian child as an Indian . . by making sure that
Indian child welfare determinations are not based on a white,
middle-class standard which, in many cases, forecloses acement
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th an Indian ly.n HoI ield, 490 u.s. at 37 rnal
quotation marks and alterations omitted).
To protect Indian children from these dangers, Congress found
it to be in the best interests of Indian children for ster care
and parental right proceedings to be " sumptive[ly]" under the
jurisdiction of a tribal, rat r than state, court. HoI 490
u.s. at 36; see 25 U.S.C. § 1902. is, the presumption of
triba juri ction is in and of itself in the best interests of
Indian Idren because tribal courts have "the rience, sdom,
and compassion . . to shion an appropriate remedy" in these
cases. HoI ield, 490 U.s. at 54; see 25 U.S.C. §§ 1901(3)-(5);
1902; 1911 (B). There is no "best interests" consideration
to be made. Whether post-transfer actions have a negat impact on
Indian children was a risk Congress beli appropriate because it
is tr 1 courts that are most familiar with, and respons to, the
needs of their Indian community and Indian children. 25 U.S.C.
§ 1901 (4), (5).
Additionally, because the ICWA "precludes the imposition of
10 standards by creating a broad presumption of jurisdiction" in
t 1 courts, allowing a "best interests" consideration under
Section 1911(b) "defeats the very purpose for which the ICWA was
enacted [by allowingj Anglo cultural ases into the analysis."
906 S.W.2d 152, 169-70 (Tex. App.
1995 )
3. The Court Adopts a Minor y Position, One That Is
Indistinguishable From a Position It Recognizes As Incorrect
Most states that have confronted the issue we face today have
held that a "best interests" consideration is inappropriate under
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the "good cause" analysis Section 1911(b). Eight states
conclusively adopt this ition, including Colorado, Illinois,
Minnesota, Missouri, Nebraska, New Mexico, North Dakota, Texas.
870 P.2d 1252, 1258 (Colo. Ct. App. 1994); In
re Armell, 550 N.E.2d 1060, 1065-66 (Ill. App. Ct. 1990); In re
Id of: R.L.Z. and R.G.L, 2009 Minn. App. Unpub. LEXIS 1015, at
*14 16 (Minn. Ct. App. 2009) (unpublished); C.E.H. v. R.H., 837
Additionally, three other states have not expressly held that
" cause" analysis of Section 1911(b) precludes a "best
interests" considerat ,but their opinions imply such a position.
rst, Iowa has adopted its own, state version of the ICWA.
See Iowa Code §§ 232B.1 Because that state law provides
more than the minimum standards of federal ICWA, the state ICWA
governs transfer of jurisdiction for cases involving Indian
children within Iowa. See In the Interest of N.V., 744 N.W.2d 634,
637 38 (Iowa 2008). Relevant to our purposes, the Iowa Supreme
Court noted that Iowa courts never approved of a "best interests"
consideration under the f ral ICWA when it was the governing law.
Id.
Second, the Utah Supreme Court held that Utah's state
abandonment law cannot allow a r's parent to that
minor's domicile to frustrate the exclus jurisdiction provision
of Section 1911(a). In re ion of Hall 732 P.2d 962, 968­
70 (Utah 1986). In ruling on the ICWA's juri ctional provis
ing state law, the Utah Supreme Court refused to weigh
typical "best interests" considerations, ludi "the bonding
that [took] place between [the adoptive parents] [the minor] ."
Id. at 971-72.
Third, the Wisconsin Court of als held that a trial court
did not err when considering a minor's "best erests" as it
re ed to a Section 1911(b) "good cause" analysis, because that
"best interests" cons ration was tied solel "to the timel ss
of the tribe's attempt to take juri ction of [the] case." State
v. Debra F., 695 N.W.2d 905, 2005 Wisc. App. 254, at *8 (Wis. Ct .
. 2005). Timeliness is an appropriate consideration under the
"good cause" analysis, and is not synonymous with a typical "best
interests" consideration.
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S.W.2d 947, 954 (Mo. Ct. App. 1992); In re Interest of Z ena R. v.
Elise M., 825 N.W.2d 173, 184-86 (Neb. 2012) (overruling its
decision to allow a "best interests" consideration in In re Interest
of C.W., 479 N.W.2d 105 (Neb. 1992)); In re Guardiansh of Ashle
Elizabeth R., 863 P.2d 451, 456 (N.M. Ct. App. 1993) i In re Interest
of A.B. v. K.B., 663 N.W.2d 625, 633-34 (N.D. 2003);
Tr:lpe, 906 S.W.2d at 169-71.
Only a minority of six states allow a "best interests"
consideration in the Section 1911(b) "good cause" analysis,
uding Arizona, California, Indiana, Montana, Oklahoma, and South
3
Dakota. In re Mari Juvenile Action No. JS 8287, 828 P.2d
1245, 1251 (Ariz. Ct. App. 1991); In re Alexandria P., 228 Cal. App.
4th 1322, 1355 56 (Cal. Ct. App. 2014); In re
----------~----------------
525 N.E.2d 298, 308 (Ind. 1988); In re T.S., 801 P.2d 77, 79-80
(Mont. 1990); 754 P.2d 863, 869 (Okla.
1988) i In re Guardiansh of J.C.D., 686 N.W.2d 647, 650 (S.D.
2004) .
Four other state courts have acknowledged the issue, but
avoided resolving it because the issue was not properly before the
court. Ex e C.L.J.
--~--~~~~~-
946 So. 2d 880, 893-94 (Ala. Civ. App.
3 The South Carolina Court of Appeals sanctioned a "best interests"
consideration for Section 1911(b) purposes. Chester Cnt. 't of
Social Servs. v. Coleman, 372 S.E.2d 912, 915 (S.C. Ct. App. 1988).
However, when the South Carolina Supreme Court reviewed that
cision, it remained notably silent on the "best interests" issue
and held that the "good cause" analysis of Section 1911(b) is,
essentially, a modified forum non conveniens analysis. See Chester
of Social Servs. v. Coleman 399 S.E.2d 773, 775 77
(S.C. 1990). It is therefore unclear whether the South Carolina
Court of Appeals' approval of the "best interests" consideration
remains good law.
11
2006); In re C.R.H., 29 P.3d 849,854 n.24 (Alaska 2001); Inre
~~, 2007 Kan. App. Unpub. LEXIS 1154, at *2-6 (Kan. Ct. App.
2007) (unpublished); In re Guardians of J.O., 743 A.2d 341, 348
49 (N. Super. Ct. App. Div. 2000).
The Court of Appeals rejected the pos ion of all these other
courts, and instead fashioned a wholly novel, and supposedly narrow,
"best interests" cons ration. ~~~_o_n_ 62 Va. App. at 373 76,
747 S.E.2d at 850-51. Today, by approving the Court of Appeals'
~--=---
on decision, the majority opinion embraces a position that is
a minority of one.
Moreover, upon closer scrutiny, it is clear that this
supposedly limited "best interests" consideration is actually
indistinguishable from the neral "best interests" standard. The
Court of Appeals acknowledged that "the traditional best interest of
the child analysis is too broad a consideration in deci ng whether
good cause exists to retain jurisdiction" under Section 1911(b).
Thompso~, 62 Va. App. at 374, 747 S.E.2d at 850. But the majority
opinion's limited "best interests" consideration is identical to the
general "best interest" st rd's scope and type of ew of post­
transfer tribal court rulings.
First, the limited "best interests" cons ration affords the
same scope of review of post-transfer tribal court rulings as the
general "best interests" standard. The Court of Appeals created an
"immediate serious emotional or physical damage flowing from the
transfer itself" standard as the basis to determine what tribal
court determinations are subject to a state court's "best interests"
review. Id. at 376, 747 S.E.2d at 851. Putting to the side the
fact that all post-transfer determinations are immune from a state
12
court's second guessing, see Hol 490 U.S. at 53-54, this
standard does not actually operate to segregate reviewable from
unreviewable tribal court rUlings. The transfer of jurisdiction
itself is, essentially, the proximate cause of the tribal court's
ability to make any ruling in the proceeding. Thus, all tribal
court rulings occurring after a Section 1911(b) trans r of
jurisdiction "flow[] from the trans r," 62 Va. App. at
376, 747 S.E.2d at 851, and are subject to a state court's review
under the majority opinion's "best interests" consideration.
Second, the limited "best interests" consi ration affords the
same type of review of post-transfer tribal court rulings as the
general "best interests" standard. That is, both allow a circuit
court to focus on the same legal factors, including the emotional
and physical impact that a ruling would have on a child. re
Bailes v. Sours, 231 Va. 96, 101, 340 S.E.2d 824, 827-28 (1986)
(hoI ng that a ruling which has a substantial "likelihood of
flicting se ous harm" to the child "is repugnant to the child's
best interest"), with Thompson, 62 Va. App. at 376, 747 S.E.2d at
851. Further, the factual context which informs the weighing of
such factors is likely to be the same for all tribal court rulings.
For example, questions of a child's mental and physical well being
in light of the child's attachments to his current home, and the
potential r danger in a new home, are equally present in a non­
nal ruling of whether a child should be moved to a new foster home
before final disposition, and a ruling on the ultimate issue of
whether the child should be placed in foster care or the parent's
rights should be terminated. Simply put, the majority opinion's
13
limited "best interests" consideration and the general "best
interests" standard apply the same law to the same types of facts.
II. Conclusion
For the aforementioned reasons, while I join that portion of
the majority opinion's disposition of this action that directs
remand of the present appeal to the trial court for consideration of
the issues, I cannot join the majority opinion's decision to ject
the Section 1911(b) jurisdictional "good cause" analysis with a
mechanism for a state court to preemptively second guess a tribal
court's substantive de sions. I would overrule the decision of the
Court of Appeals in ~.~~s~o~n in part, to the extent it directed
ci t courts to evaluate a "best interests" consideration, and
reverse the Court of Appeals' disposition in the present case on
that issue, and affirm the Court of Appeals decision in the present
case in part, to the extent it directed the circuit court to
evaluate the other "good cause" considerations set forth in
T son, 62 Va. App. at 377-83, 747 S.E.2d at 851-55.
A Copy,
Teste:
Clerk
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