In the Matter of the Termination of the Parent-Child Relationship, S.K., Minor Child,
Indiana Department of Child Services, Appellee-Petitioner. T.K., Father, Appellant-Respondent,
from the Vanderburgh Superior Court The Honorable Brett J.
Niemeier, Judge Trial Court Cause No. 82D04-1811-JT-2170
ATTORNEY FOR APPELLANT Katharine Vanost Jones Evansville,
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana David E. Corey Deputy Attorney General
T.K. ("Father") appeals the involuntary termination
of his parental rights to his child, S.K. We affirm.
and Procedural History
Father is the biological father of S.K., born on June 30,
2004. (Exs. I 53) On June 17, 2016, the Indiana Department of
Child Services ("DCS") filed a petition alleging
S.K. was a child in need of services ("CHINS"). An
entry dated June 21, 2016, in the chronological case summary
("CCS") indicates that the court held a hearing,
Father informed the court that S.K. was subject to the Jay
Treaty and that S.K.'s mother was Canadian,
DCS indicated that it had not found the child or mother
listed as Native American, and the court issued a detention
order. A CCS entry dated July 6, 2016, states
that DCS determined that mother, while being a member of an
Indian tribe in Canada, is not covered by the Indian Child
Welfare Act ("ICWA"). A CCS entry dated April 26,
2017, states that Father indicated that he retained counsel
and planned on suing DCS in federal court because DCS never
contacted the tribe of which the child was a member. In May
2017, DCS filed for termination of Father's parental
rights, but the matter was dismissed due to exceeding
In February 2018, DCS filed a petition for termination of the
parent-child relationship. A CCS entry dated March 14, 2018,
indicates that the court held a hearing, Father's counsel
stated that S.K. was registered with "an Indian tribe
out of Canada," and "DCS says they have checked on
this and the tribe is not federally recognized."
Exhibits Volume I at 227.
At a hearing on September 20, 2018, Father's counsel
stated that S.K. was a registered member of a tribe "out
of Canada" and that Father believed that "the
tribal number of 189, which is on her Indian status card out
of Canada, corresponds with the U.S. Federal tribe,
therefore, making recognition of her as an Indian child as
described and covered by the Indian Child Welfare Act"
applicable. Id. at 47-48. The court admitted a
document from the "Indigenous and Northern Affairs
Canada," titled "Temporary Confirmation of
Registration Document," which confirmed that S.K. was
registered as an Indian under the Indian Act as of March 19,
2010, with the registration number 1890152601. Appellee's
Appendix Volume II at 2. DCS's counsel stated that DCS
did not dispute that S.K. was a registered member of a
Canadian tribe, but asserted that the tribe was not federally
recognized by the United States of America and that the ICWA
did not apply. DCS's counsel also referenced a letter
from the United States Department of the Interior. In that
letter dated March 19, 2018, the Bureau of Indian Affairs of
the United States Department of the Interior acknowledged the
official notice received by the Bureau of Indian Affairs,
Eastern Region, by DCS with regard to S.K., a child who DCS
believed may be covered by the ICWA. The letter states in
It appears you are trying to establish membership in a tribe
for the child as you have reason to believe the child has Lac
Des Mille First Nation of Canada heritage.
The Lac Des Mille First Nation of Canada is not listed as a
federally recognized tribe. The federal ICWA applies only if
the Tribe is a federally recognized tribe.
Exhibit A. The termination cause was dismissed due to
exceeding statutory timelines.
On November 29, 2018, DCS filed a verified petition for
involuntary termination of the parent-child relationship
asserting that the court had jurisdiction under "I.C.
31-30-1-1, 31-21-5-1, 31-35-2-3, et al." Appellant's
Appendix Volume II at 26.
On December 3, 2018, Father filed a motion to dismiss
alleging that S.K. was a member of a Canadian recognized
tribe and that the Jay Treaty of 1794 and the ICWA applied.
He asserted that he previously notified DCS and that DCS
"informed the court that they were aware but that the
children's tribe was not a U.S. recognized tribe."
Id. at 32. He asserted that S.K. was a
"registered member of the Lac Des Mille Lacs Canadian
Tribe" which "is recognized through the Objawie
and/or Chippewa native tribes in both the U.S. and
Canada," and that "[t]his tribe is also known as
Mille Lacs Band of Ojibwe or Mille Lacs Band of Chippewa
Indians with its homeland being Mille Lac Indian reservation
in Minnesota." Id. He also asserted that DCS
stated on July 6, 2016, that the tribe was Canadian and not
federally recognized, that there was no record filed that DCS
served notice upon the appropriate tribe within the CHINS
case, that DCS sent a notice to Nashville, Tennessee,
"to the Eastern Bureau of Indian Affairs, not the
appropriate region for the tribe," that he and S.K.
constitute an Indian family pursuant to the ICWA and Indiana
law, and that jurisdiction must be transferred to the tribal
court pursuant to § 1911(b) of the ICWA. Id. at
33. Father also asserted that, if the ICWA applies but the
case remains in the court, then the burden of proof must be
"beyond a reasonable doubt" in order to terminate a
parent's rights under the ICWA. Id. at 34.
On February 25, 2019, the court held a hearing. Father's
counsel indicated that Father was not present and requested a
continuance. DCS's counsel objected to a continuance and
asserted that the court previously ordered Father to be
present, the case manager discussed the court dates with
Father, called the local hospitals, checked with the local
jail, and attempted to call Father at ...