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G.L. v. Department of Children and Families

Florida Court of Appeal, Fifth District

February 14, 2012

G.L., Father of T.M.L., a child, Appellant,
v.
DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.

Page 1066

Heather Morcroft, Orlando, for Appellant.

Rosemarie Farrell, Orlando, for Appellee, Department of Children and Families.

Laura E. Lawson, Tavares, for Appellee, Guardian ad Litem.

Page 1067

ORFINGER, C.J.

The father, G.L., appeals the termination of his parental rights to his child, T.M.L. He contends that the notice requirements of the Indian Child Welfare Act of 1978 (" ICWA" ), 25 U.S.C.A. §§ 1901-1963 (2010), were not met. We agree, reverse the judgment, and remand with directions.

As a result of her parents' drug history, domestic violence and related criminal history, T.M.L. was sheltered and placed in foster care. The Department of Children and Families (" DCF" ) filed an expedited petition to terminate the mother's and father's parental rights. In response, the mother filed a notice with the court alleging that she and the child have Indian ancestry and, as a consequence, the ICWA was applicable. The court minutes reflect that the trial court and the parties were aware of the need to satisfy the ICWA's requirements based on the mother's notice. However, the trial court made no determination as to applicability of the ICWA. The mother and father appeared at the termination hearing, and neither the parents, DCF nor the court raised the issue of the ICWA's applicability. The court terminated parental rights. While the mother did not appeal, the father claims that the trial court's failure to comply with the ICWA requires reversal.

At the outset, we reject DCF's assertion that this issue may not be addressed on appeal as it was not raised by the father below. Section 1912 of the ICWA provides that " [i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." Thus, under the ICWA, DCF has the burden of notifying the appropriate Indian tribes so that the trial court has the information necessary to determine whether the ICWA is applicable.

We find that the provisions of the federal ICWA allowing post-judgment challenges to involuntary termination proceedings preempt the traditional rules regarding preservation of error.[1] The notice requirements enumerated in the ICWA are mandatory and preempt state law, and the failure to follow the ICWA may be raised for the first time on appeal. See 25 U.S.C.A. § 1914 (stating that Indian child, parent of child, or tribe may petition any court of competent jurisdiction to set aside involuntary termination for failure to comply with ICWA); see also In re Antoinette S., 104 Cal.App.4th 1401, 129 Cal.Rptr.2d 15, 21 (2002) (finding that father's failure to raise issue of applicability of ICWA notice requirement did not waive issue on appeal of termination of parental rights because notice requirement is intended, in part, to protect interests of Indian tribes, and therefore, cannot be waived by parents' failure to raise it); People in Interest of J.O., 170 P.3d 840, 842 (Colo.Ct.App.2007) (stating that " notice requirements of

Page 1068

the ICWA serve the interests of the Indian tribes and, therefore, cannot be waived by a parent and may be raised for the first time on appeal" ); In re J.J.C., 302 S.W.3d 896, 899 (Tex.App.2009) (finding that ICWA protections are mandatory and preempt state preservation of error law). But see In Interest of J.D.B., 584 N.W.2d 577, 581 (Iowa Ct.App.1998) (" [W]e find nothing in ICWA which expressly or impliedly preempts a state's error preservation rules." ).

Congress enacted the ICWA for the purpose of protecting the best interests of Indian children and to promote the stability and security of Indian tribes and families. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). The ICWA applies when the state seeks to place an Indian child [2] in foster care or terminate parental rights. See 25 U.S.C.A. §§ 1911, 1912. Under those circumstances, whenever the court has reason to know that the child may be an Indian child, DCF, as the party seeking placement or termination, must provide notice to the child's tribe, or the Bureau of Indian Affairs (" BIA" ) if the tribe cannot be identified or located, with return receipt requested, of the pending proceedings and of the tribe's right to intervene. 25 U.S.C.A. § 1912(a). The tribe must receive notice because " the best source of information on whether a particular child is Indian is the tribe itself" and " tribal verification is preferred." Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,586 (B.1 Commentary)[3] (Nov. 26, 1979) (" the Guidelines" ). The record before us contains no proof of notice to the tribes, and it is undisputed that the court did not determine whether T.M.L. is an Indian child.

Here, the trial court had reason to believe that T.M.L. is an Indian child.[4]See BIA Guidelines, 44 Fed. Reg. at 67,586 (providing that court may have " reason to believe" child is an Indian child if (1) any party to the case, Indian tribe, Indian organization, or public or private agency informs court that child is Indian; (2) any public or state-licensed agency involved in child protection services or family support has discovered information that suggests child is Indian; or (3) ...


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