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In re Termination of Parent-Child Relationship S.K.

Court of Appeals of Indiana

December 23, 2019

In the Matter of the Termination of the Parent-Child Relationship, S.K., Minor Child,
v.
Indiana Department of Child Services, Appellee-Petitioner. T.K., Father, Appellant-Respondent,

          Appeal 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, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana

          BROWN, JUDGE.

         [¶1] T.K. ("Father") appeals the involuntary termination of his parental rights to his child, S.K. We affirm.

         Facts and Procedural History

         [¶2] 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[1] 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.[2] 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 statutory timelines.

         [¶3] 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.

         [¶4] 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 part:

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.

         DCS Exhibit A. The termination cause was dismissed due to exceeding statutory timelines.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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 ...


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