May 1, 2015
Cullman County Department of Human Resources
from Cullman Juvenile Court. (JU-13-46.03).
Appellant: Sarah Sparks, Cullman.
Appellee: Luther Strange, atty. gen., and Sharon E.
Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst.
atty. gen., Department of Human Resources.
THOMPSON, Presiding Judge.
Cullman County Department of Human Resources ("
DHR" ) filed in the Cullman Juvenile Court (" the
juvenile court" ) a petition seeking to terminate the
parental rights of J.N.T. (" the mother" ) and
J.B.S. (" the father" ) to their minor child,
D.C.L.T. (" the child" ). The mother answered and
denied the allegations of the petition; the father was served
by publication but did not appear in the action.
November 19, 2014, the juvenile court entered a judgment
terminating the parental rights of the mother and the father.
The mother timely appealed.
conclude that the mother's argument concerning the
juvenile court's failure to properly apply the Indian
Child Welfare Act (" the ICWA" ), 25 U.S.C. §
§ 1901 through 1963, is dispositive of this appeal.
Accordingly, we do not reach the other issues raised in her
brief submitted to this court.
mother argues that the juvenile court did not comply with the
ICWA. With regard to the child's heritage as a Native
American, DHR presented the following evidence of its
attempts to comply with the
ICWA at the November 13, 2014, ore tenus termination hearing.
Michelle Cash, the DHR social worker assigned to the case,
testified that, approximately two weeks before the
termination hearing, she became aware that the mother and the
child had family ties with a Native American tribe. It
appears that during a 2007 DHR investigation of the
child's maternal grandmother's ability to care for
her children, DHR social workers noted that the mother's
father lived on an Indian reservation in Wisconsin and that
the mother visited him occasionally. The mother testified
that she had informed DHR of her Native American heritage,
but a DHR social worker disputed that testimony.
Alexander, a DHR employee, testified that, upon learning of
the child's heritage, she and a DHR social worker
investigated the mother and sent a form (" the inquiry
form" ) to the Native American tribe at issue, the
Stockbridge-Munsee Community Band of Mohicans (" the
tribe" ), to inquire whether the child was a member of
the tribe or was eligible for membership in the tribe. A copy
of the inquiry form is not contained in the record on appeal.
Alexander did not testify regarding the date the inquiry form
was sent, but the record indicates that DHR received a
delivery receipt from the United States Postal Service dated
November 7, 2014, evidencing that the tribe had received the
inquiry form from DHR on that date. Alexander testified that
she also had sent that inquiry form to the tribe by facsimile
transmission and that she had made telephone inquiries
regarding the child's status with the tribe. However,
Alexander stated, she had not received a response from the
tribe at the time of the November 13, 2014, termination
judgment, the juvenile court concluded, among other things,
that the child was " subject to" the ICWA, the
purpose of which is " to protect the best interests of
Indian children and to promote the stability and security of
Indian tribes and families." 25 U.S.C. § 1902; see
also Ex parte C.L.J., 946 So.2d 880 (Ala.Civ. 2006).
In so concluding, the juvenile court implicitly determined
that the child was an " Indian child" under the
ICWA; in other words, the juvenile court implicitly
determined, the child is either " a member of an Indian
tribe or ... is eligible for membership in an Indian tribe
and is the biological child of a member of an Indian
tribe." 25 U.S.C. § 1903(4) (defining the term
" Indian child" ).
that the mother has briefly argued that the juvenile court
erred in not transferring the action to the tribe's
tribal court; she contends that the juvenile court lacked
subject-matter jurisdiction over the child. However, the
record indicates that the child has never been domiciled, and
has never resided, on the tribe's reservation. Under the
ICWA, a termination-of-parental-rights action involving an
Indian child who does not live on the tribe's reservation
shall be transferred to the tribal court, " in the
absence of good cause to the contrary," when either a
parent or the tribe petitions for such a transfer. 25 U.S.C.
§ 1911(b). In this case, no such petition for a transfer
was filed, and, therefore, § 1911(b) was not implicated.
We reject the mother's argument that the juvenile court
lacked subject-matter jurisdiction on this basis.
mother also contends that the notice DHR provided to the
tribe under the ICWA was inadequate. The ICWA requires that
certain people and entities are entitled to notice of certain
proceedings involving an Indian child:
" In 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. ... No foster care placement or
termination of parental rights proceeding shall be held until
at least ten days after receipt of notice by the parent or
Indian custodian and the tribe ...."
25 U.S.C. § 1912(a) (emphasis added).
presented evidence indicating that its employees sent the
inquiry form to the tribe to inquire whether the child was a
member of the tribe or eligible to be a member of the tribe.
Alexander's testimony indicates that the inquiry form
made some mention of the tribe's right to intervene in
the action, but there is no indication in the record on
appeal regarding whether the tribe was notified that a
termination-of-parental-rights action regarding the child was
the record indicates that the tribe received the inquiry form
from DHR on November 7, 2014, less than a week before the
juvenile court conducted the November 13, 2014, termination
hearing. Section 1912(a) dictates that no
termination-of-parental-rights proceeding pertaining to an
Indian child may be conducted until at least 10 days after an
Indian tribe has received the notice required in that
section. Thus, even assuming that DHR's November 2014
inquiry to the tribe contained the type of notice
contemplated by 25 U.S.C. § 1911(a), it is clear that
the juvenile court conducted the termination hearing less
than 10 days after the tribe received that notice.
we agree with the mother that the juvenile court failed to
comply with the notice requirements of the ICWA. Therefore,
we reverse the juvenile court's judgment insofar as it
terminated the mother's parental rights to the child, and
we remand the cause for the juvenile court to comply with the
provisions of the ICWA and to determine whether, given the
facts and posture of this action, as well as relevant Alabama
caselaw, it may properly exercise jurisdiction over the
Thomas, Moore, and Donaldson, JJ., concur.
Alexander testified, in part, as
" Q. Now, as part of the policy and procedure
for DHR in regard to [the child's] Indian heritage, did
[DHR] make inquiries as to any possible foster homes that
had Indian heritage that would be available for [the
" A. As part of the inquiry form, you
know, that the tribe itself would be charged with,
you know, intervening should they choose to do so.