ruling that aunt did not qualify as an Indian custodian when she cared for her niece pursuant to a traditional foster care placement because the state agency retained legal custody
How later courts described this case
- ruling that aunt did not qualify as an Indian custodian when she cared for her niece pursuant to a traditional foster care placement because the state agency retained legal custody
- federal standards include “notice to parents and Indian custodians of any hearing regarding change in foster care placement or any termination of parental rights * * *; the affording such persons other rights such as the right to intervene and the right to appointed counsel * * *; and the requirement that preference be given in adoptive or foster placement to members of the Indian child’s extended family and members of the child’s tribe * * *”
- aunt without legal custody not entitled to notice under Act
Written by the judges who cited it.
The opinion
TANZER, J.,
concurring.
I concur in the result. I do not disagree with the majority, but I believe that a threshold issue is dispositive. I would hold that the notice provisions of 25 USC § 1912 have been complied with. The statute is phrased in the alternative: The moving party “shall notify the parent or Indian custodian and the Indian child’s tribe.” (Emphasis supplied.) Because the parent had actual notice, there was no need to notify the Indian custodian. The statute was fully complied with by notice to the parent. 1
At oral argument before this court, the state declined to urge this construction of the statute because, it contended, we should not impute to Congress an intention to violate the constitutional rights of foster parents. That contention is erroneous. First, the unambiguous words of the statute leave no room for judicial construction. If the statute is constitutionally deficient, that determination can be made in a proper proceeding which challenges the validity of the statute or asserts a constitutional claim. In this proceeding, petitioner seeks enforcement of her rights under the statute; she makes no constitutional claim. Second, whatever due process rights a legally established foster parent of less than 18 months may have, those rights do not include notice of and participation in judicial proceedings. See Smith v. Organization of Foster Families, 431 US 816 , 97 S Ct 2094 , 5 L Ed 2d 14 (1977).