Thompson v. Fairfax County Department of Family Services

62 Va.App. 350

747 S.E.2d 838

Tyrus H. THOMPSON and Ja'Ree C. Thompson

v.FAIRFAX COUNTY DEPARTMENT OF FAMILY SERVICES, Minh–Sang Nguyen, Jasmine Vanderplas and Standing Rock Sioux Tribe

Jasmine Vanderplas

v.Fairfax County Department of Family Services, Minh–Sang Nguyen, Standing Rock Sioux Tribe, Tyrus H. Thompson and Ja'Ree C. Thompson

Minh–Sang Nguyen

v.Fairfax County Department of Family Services

Nancy J. Martin, as Guardian Ad Litem for the Minor Child

v.Fairfax County Department of Family Services, Minh–Sang Nguyen, Jasmine Vanderplas, Standing Rock Sioux Tribe, Tyrus H. Thompson and Ja'Ree C. Thompson.

Record Nos. 2185–12–4, 2232–12–4, 2217–12–4, 2216–12–4.

Court of Appeals of Virginia, Richmond.

Sept. 10, 2013.

Dontaé L. Bugg (Bianchi & Bugg, PLLC, on briefs), for Jasmine Vanderplas.

Michael S. Arif (Darlene R. Langley, Springfield; Arif & Associates, on briefs), for Minh–Sang Nguyen.

Nancy J. Martin, Woodbridge, Guardian ad litem for the minor child.

Constantinos DePountis (Daniel B. Schy; Staff Attorney, Standing Rock Sioux Tribe; Law Offices of Derek P. Richmond, on brief), for appellee Standing Rock Sioux Tribe.

Mark D. Fiddler (Robert H. Klima, Manassas; Fiddler Law Office, P.A., on brief), for Tyrus H. Thompson and Ja'Ree C. Thompson appearing as amicus curiae.

No brief or argument for appellee Fairfax County Department of Family Services.

Present: ELDER, PETTY and McCULLOUGH, JJ.

McCULLOUGH, Judge.

The Indian Child Welfare Act (ICWA) provides, with regard to a termination of parental rights case involving an Indian child not domiciled on a reservation under 25 U.S.C. § 1911(a), that state courts “shall transfer” the case to a tribal court unless the court finds “good cause to the contrary.” 25 U.S.C. § 1911(b). The trial court held that the guardian ad litem and the foster parents of B.N., an Indian child, had not established good cause to retain jurisdiction. The court, therefore, ordered the case transferred to the Standing Rock Sioux tribal court in North Dakota. The guardian ad litem and the foster parents appeal this decision. For their part, B.N.'s parents appeal the order granting a stay pending appeal. For the reasons noted below, we reverse and remand for further proceedings.

BACKGROUND

Jasmine Vanderplas, also known as Jasmine Thundershield,¹ gave birth to B.N. in July 2010. Vanderplas is one-half Sioux. B.N.'s father, Minh–Sang Nguyen, is wholly of Vietnamese descent. The Standing Rock Sioux Tribe has enrolled B.N. as a member of the Tribe. The Bureau of Indian Affairs of the United States Department of the Interior issued a “Certified Degree of Indian Blood” for B.N., finding that she has a “total Sioux blood quantum [of] 1/4.”

Both Vanderplas and Nguyen have abused alcohol and drugs. They also have been convicted of a number of crimes. The Fairfax County Department of Family Services initiated a variety of steps designed to protect B.N.: a preliminary protective order, a foster care placement on April 11, 2011, and, ultimately, a petition to terminate the parental rights of both parents. B.N. has not lived with either parent since April 8, 2011, when she was nine months old. It is undisputed that she has resided in Fairfax County since her birth. By orders dated May 3, 2012, the Juvenile and Domestic Relations District Court of Fairfax County (J & DR court) terminated Nguyen's and Vanderplas's residual parental rights. Nguyen and Vanderplas appealed the orders to the circuit court.

The County repeatedly sought to keep the Tribe informed of developments in the case. The Tribe participated in the April 15, 2011 hearing by telephone. On May 2, 2011, the County wrote to a representative of the Tribe, Terrance Yellow Fat, enclosed a copy of the preliminary removal order entered by the court on April 15, 2011, and informed the representative of the Tribe's right to intervene in the pending foster care proceedings. Next, on May 10, 2011, the County mailed a copy of the adjudicatory order to the tribal representative and informed him that a dispositional hearing was scheduled for June 10, 2011. As the case proceeded through the J & DR court, the County continued to notify the Tribe, by registered mail, of the adjudicatory hearing, the dispositional hearing, and hearings on the Department's petitions for permanency planning. Fairfax County attempted to contact Mr. Yellow Fat by telephone and by sending him a letter by certified mail, dated April 4, 2012, informing him of the upcoming court hearing scheduled for May 3, 2012, in J & DR court. On June 19, 2012, the County mailed another certified letter to the tribal representative to inform him of the scheduled hearing for the termination of parental rights and informing him of the Tribe's right to intervene. The letter further stated that the hearing to terminate parental rights was scheduled for August 6, 2012, in the Fairfax County Circuit Court.

Initially, on August 1, 2012, the Tribe filed a motion to intervene in the J & DR court. By then, however, the case was pending in circuit court. ² The circuit court granted the parties' motion to continue the trial date from August 6, 2012, to September 11, 2012 and again to September 12, 2012. On September 7, 2012, the Standing Rock Sioux Tribe filed a motion to intervene in the circuit court, which the court granted the same day it was filed. Relying on ICWA, the Tribe also moved on September 10, 2012, to transfer jurisdiction of the case to the Tribe's court. The Tribe is located in North Dakota, approximately 1600 miles from Fairfax County. B.N.'s parents supported the motion to transfer. Fairfax County and B.N.'s guardian ad litem, however, opposed the motion to transfer.

The County argued transfer was not appropriate because (1) the proceedings were at an advanced stage and the Tribe failed to promptly petition for transfer of jurisdiction; (2) the evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the Department and its witnesses; and (3) the transfer would harm B.N. B.N.'s guardian ad litem also relied on these grounds and raised two additional arguments: the Existing Indian Family Exception precludes application of ICWA on these facts, and application of ICWA in this case would be unconstitutional.

The circuit court found, without objection, that B.N. is an Indian child for purposes of ICWA. The court rejected each of the grounds advanced for a finding of good cause to deny transfer. The court held that the proceedings were not at an advanced stage because the Tribe presented its motion to transfer before the de novo trial on the termination of parental rights. Moreover, the court noted that the parents had not been notified of their independent right to request transfer and held that they were prejudiced by this lack of notice. As to the inconvenience to the parties, the court held that modern technology, such as video conferencing, means that there would be no undue hardship for the case to proceed in North Dakota. Counsel for the Tribe stated that participation by video or telephone is “commonplace” and could be set up “with ease.” The court concluded that the best interests of the child was not an appropriate consideration in determining whether to transfer the case to a tribal court. Finally, the court held that the statute was not unconstitutional on its face or as applied.

The guardian ad litem filed an emergency motion and a request to stay the court's order pending appeal. B.N.'s foster parents filed a motion to reconsider the trial court's transfer decision, which the guardian ad litem joined. In addition to the arguments previously raised, the foster parents contended that good cause existed to refuse transfer because the Fairfax County Circuit Court was the only court with jurisdiction over both parents. B.N.'s father is not a member of the Tribe and, therefore, the foster parents argued the tribal court could not adjudicate his termination of parental rights case.

The circuit court denied the motion to reconsider. After hearing testimony, the court granted the motion to stay the order to transfer, pending appeal. Regarding the stay, the court relied on testimony from a number of witnesses that it found “very, very compelling.” In particular, the court heard testimony from a psychotherapist, who testified that removing B.N. from her present environment would prove “catastrophic” due to her reactive attachment disorder. A second witness, a clinical psychologist, likewise concluded that B.N. suffered from reactive attachment disorder and that a transfer at this time would very likely cause B.N. “irreparable” harm. Finally, the trial court ruled that the foster parents would be allowed to intervene as a party for purposes of the appeal. B.N.'s foster parents desire to adopt her. B.N.'s foster parents and the guardian ad litem appeal the transfer decision, and her biological parents appeal the trial court's award of a stay.

ANALYSIS

Our first task is to determine the standard of review. Appellate courts in other states have employed a variety of standards in reviewing the question of whether the trial court properly found good cause to deny transfer under ICWA. Although courts have employed a variety of approaches, ³ appellate courts most commonly review transfer decisions under an abuse of discretion standard.⁴

As the commentary to the guidelines acknowledges, 44 Fed.Reg. 67,591, and as a number of courts have concluded,⁵25 U.S.C. § 1911(b) constitutes a modified version of the forum non conveniens doctrine. From its inception, the forum non conveniens doctrine has allowed state and federal trial courts a measure of discretion in selectingan appropriate forum. See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 511–12, 67 S.Ct. 839, 844–45, 91 L.Ed. 1055 (1947) (recognizing the doctrine for federal courts and applying an abuse of discretion standard). The current forum non conveniens statute, 28...