All Affiliated Tribes Must Receive Notice Before Termination of Parental Rights

The Court of Appeals, Division II, In Re: ADB-L & LNB-L; JB-L.& KL v. DSHS, dkt No. 38850-2 held recently that the notice requirements of state law were more expansive than those of the U.S. Indian Child Welfare Act (“ICWA”).

ICWA is designed to prevent the break-up of the Indian family.  It applies to a proceeding to terminate parental rights to an Indian child, where the child is enrolled, or eligible for enrollment, in a federally recognized Indian tribe.

Per ICWA, the party seeking to terminate parental rights must notify the child’s tribe.  State law is broader.  The dependency statute requires the party seeking termination to provide notice to all tribes the petitioner has reason to know may be affiliated with the child.

Here, the party seeking termination of parental rights was the State of Washington, Department of Social and Health Services (“DSHS”).  DSHS sent notice to the Nooksack tribe, where one of the children was enrolled and the other was enrollable.  However, it did not send notice to three other tribes that may have some kind of affiliation with the children.

The mother, who was enrolled Nooksack, was also enrolled in the Squamish Nation out of Canada.  The Father claimed Cherokee and Blackfoot ancestry, though he was not enrolled in either of those tribes.

The Court of Appeals held that the Squamish, Cherokee, and Blackfoot tribes should have been notified of the termination proceedings.  Otherwise, the appellate court affirmed the trial court’s ruling terminating parental rights.

To address the notice issue, the Court of Appeals instructed the trial court to ensure that DSHS provided the requisite notice.  If one or more of the three tribes then chose to intervene, the trial court would have to re-open the proceedings.  On the other hand, if each of the three tribes chose not to intervene, the termination orders would stand.

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