In re GF

2007 VT 11

923 A.2d 578

In re G.F., G.F. & J.F., Juveniles.

No. 2006-399, January Term, 2007

Supreme Court of Vermont

February 23, 2007

ENTRY ORDER

In the above-entitled cause, the Clerk will enter:

¶ 1. Mother and father separately appeal from a judgment of the Orleans Family Court terminating their residual parental rights to minors G.F., G.F., and J.F. Mother contends the court improperly failed to: (1) make a finding required by the Indian Child Welfare Act; and (2) explore alternative disposition options to termination. Father joins in mother's second claim, and also asserts that the court erroneously denied his request for appointment of counsel. We affirm.

¶ 2. The facts and procedural background may be briefly summarized. Additional facts will be set forth in the discussion which follows. The children in this case, age eleven, nine, and eight at the time of these proceedings, came into the custody of the Department for Children and Families (DCF) on an emergency basis in January 2005, when the police responded to a report that the children were locked outside their home. Mother was home at the time and admitted to smoking marijuana. The children were placed in a foster home, where they have since remained.

¶ 3. Mother had been granted sole custody of the children under a 2001 judgment of divorce from father. Father's relationship with mother began when she was twelve, and father physically abused her throughout their relationship. After the divorce, father was frequently out of state, avoiding Vermont arrest warrants. His limited contact with DCF providers and the family has been marked by hostility and aggression.

¶ 4. The family had been receiving services from DCF and other community support agencies since 2001. Between 2001 and 2005, however, mother moved frequently between Vermont and New Hampshire, making it difficult to sustain services or keep track of the family. During this period, DCF received numerous reports that mother was leaving the children alone and unattended, was abusing alcohol and marijuana, and was the victim of domestic violence by a number of domestic partners.

¶ 5. Mother stipulated to an adjudication of CHINS in March 2005, and stipulated to a disposition order the following month. The caseplan identified reunification as the goal and called for a variety of services, including substance abuse counseling, family therapy, and parent education. Although notified of the hearing, father did not appear at the detention hearing in January 2005, and also failed to appear at the subsequent CHINS and disposition hearings. The caseplan called for father to participate in parenting classes, domestic violence education, substance abuse counseling, and individual therapy, but did not consider father as a placement option in view of his continued absence from the children's lives.

¶ 6. In December 2005, DCF filed termination of parental rights (TPR) petitions as to all three children based on the parents' failure to progress under the caseplan. The court became aware early in the proceedings that the children, through mother, might be eligible for membership in the Choctaw Nation of Oklahoma (Tribe) and ordered that the Tribe be provided with all hearing notices in the case. The Tribe officially recognized mother and the children as members in February 2006. The Tribe did not, however, seek to intervene and failed to appear or participate in any of these proceedings. A three-day TPR hearing was held in April 2006 and continued for a final one-day hearing in August. In the interim, at the request of the children, the court issued a ruling that the Indian Child Welfare Act, 25 U.S.C §§ 1901-1963 (ICWA), applied to the proceedings, but that the Tribe had consciously waived its right to intervene or appear. The court further found that mother and the children had not had any contact with the Tribe or Indian culture, and that she and father opposed any placement of the children with the Tribe.

¶ 7. In late August 2006, the court issued a written decision concluding that there had been a substantial change of circumstances in light of both parents' failure to progress under the caseplan, and further concluding that termination of parental rights was in the best interests of the children. The court found that all of the children had suffered from neglect while in mother's custody; that as a result the children had suffered emotional anxiety and physical distress; that mother had consistently abused marijuana, prescription drugs, and alcohol, and had failed to make any real progress in substance abuse counseling or parenting classes; and that there was no likelihood that mother could resume her parental responsibilities within a reasonable time. The court also found that the children had made substantial progress in foster care, where they were fully integrated into a stable, loving home. As to father, the court found that he had only sporadic contact with the children since the divorce; that he had made no significant progress in parenting education or anger management counseling, indeed that he remained subject to angry outbursts and impulses; and that he could not resume parenting responsibilities within a reasonable period of time. Accordingly, the court granted the TPR petitions.

¶ 8. The State filed a post-judgment motion for additional findings under the ICWA. The State noted that despite the court's finding that the Tribe had waived its right to intervene or appear, the ICWA continued to apply and required a finding under § 1912(f), which provides:

No termination of parental rights may be ordered in such termination proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

25 U.S.C. § 1912(f). The court denied the motion. This appeal followed.

¶ 9. Mother first contends the court improperly failed to make the requisite "determination, supported by evidence beyond a reasonable doubt," that her continued custody was "likely to result in serious emotional or physical damage to the child," as required by § 1912(f) of the ICWA.¹ As we have elsewhere explained, 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." In re M.C.P., 153 Vt. 275, 282, 571 A.2d 627, 631 (1989) (quoting 25 U.S.C. § 1902). Congress achieved these goals by establishing "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture." 25 U.S.C. § 1902. The ICWA provides that when the court has reason to know that an Indian child is involved in a juvenile court proceeding, it must notify the child's tribe and afford it the opportunity to exercise jurisdiction or intervene. Id. §§ 1911(b), 1912(a). In those cases where the proceeding remains in state court, the ICWA sets out standards which must be met before a child can be placed in foster care and before the parent's rights can be terminated, including the provision at issue here, § 1912(f).

¶ 10. As noted, mother's contention is based solely on the trial court's failure to comply with the statutory finding requirement; she does not claim that the record evidence would fail to support such a finding, had the court chosen to address the issue. The State, in response, does not dispute that, notwithstanding the Tribe's apparent indifference to the outcome in this case, the ICWA remained applicable; indeed, the State acknowledged as much in its post-judgment motion seeking an express finding under § 1912(f). The State asserts, rather, that the trial court "substantially complied" with the statutory requirement through its other undisputed findings-based on extensive evidentiary support-that reunification with mother would be detrimental to the mental health and physical well-being of the children.

¶ 11. Although the court acknowledged in its preliminary ruling that the ICWA applied, it made no reference there or in its subsequent termination ruling to § 1912(f) or to the requirement of a determination, supported by evidence beyond a reasonable doubt, that the children would suffer physical or emotional harm if returned to mother. Accordingly, it is difficult to conclude that the court was aware of the statutory requirement and intended to address it, albeit implicitly through its other findings rather than by express reference to the statute or the statutory language. The cases on which the State relies show that the ICWA "does not require that a state court specifically cite the beyond-a-reasonable-doubt standard of proof" set forth in § 1912(f), In re M.R.G., 97 P.3d 1085, 1087 (Mont. 2004), but also suggest that the court's findings should "demonstrate an understanding, on the part of the trial court, that the State satisfied its burden of proof." In re M.D.M, 59 P.3d 1142, 1146 (Mont. 2002). Such an understanding by the court of its obligation under § 1912(f) is not apparent from its decision here. Indeed, the State's motion gave the court the opportunity to make that clarification, but the court denied it without explanation. We are therefore unable to conclude that the court substantially complied with the statutory requirement.

¶ 12. Nevertheless, other states have concluded that errors of this nature under the ICWA may be deemed harmless; that a determination of harmless error "is dependent upon the particular facts and circumstances" of each case, In re Enrique P., 709 N.W.2d 676, 689 (Neb. Ct. App. 2006); and that it is "appropriate to consult the policies underlying the ICWA" in evaluating such claims. In re J.J.G., 83 P.3d 1264, 1268 (Kan. Ct. App. 2004). In Enrique P., for...