# In Re Adoption of K.L.R.F. > Supreme Court of Pennsylvania · February 24, 1987 · 356 Pa. Super. 555 URL: https://www.frixlaw.com/law-library/cases/9754547 ## Case - **Full name:** In Re ADOPTION OF K.L.R.F. Appeal of Victoria Red Fox WOODS, Natural Mother - **Court:** Supreme Court of Pennsylvania - **Decided:** February 24, 1987 - **Citations:** 356 Pa. Super. 555; 515 A.2d 33 - **Precedential status:** Published - **Opinion:** Concurrence by Sole - **Judges:** Cirillo, Sole, Beck - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9754547 ## Opinion text DEL SOLE, Judge, concurring: I agree with the majority that the custodial arrangement under the facts of this case was temporary for the purposes of applying § 1913(b) and therefore Appellant had the right to withdraw her consent to the placement. The order terminating Appellant’s parental rights must therefore be set aside. I believe, however, that the refusal of the hearing court to transfer the proceedings to the tribal court pursuant to 25 U.S.C.A. § 1911 (b) merits discussion. Appellant, and subsequently the Cheyenne River Sioux Tribal Court sought transfer of these proceedings to the Tribal Court based on the Indian Child Welfare Act (ICWA) 25 U.S.C.A. § 1901 et seq. The Act states in pertinent part: Transfer of proceedings; declination by tribal court. In any State court proceeding for ... termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of gbod cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe *566 ... upon the petition of either parent or the Indian child’s tribe____ 25 U.S.C.A. § 1911 (b). On January 9, 1984, the trial court denied the Appellant’s application for transfer of the proceedings finding good cause to deny transfer and on September 11, 1984, the application of the tribe for transfer was denied for the reasons set forth in the January 9, 1984 order. I agree with the trial court that what constitutes “good cause to the contrary” has not been definitively established and I have located no Pennsylvania case law interpreting the ICWA. However, other jurisdictions and authority have considered the term. The Arizona Court of Appeals in Matter of Appeal in Pima County, 130 Ariz. 202 , 635 P.2d 187 (App.1981) found the trial court should have deferred to tribal jurisdiction as: Evidence concerning the mother’s fitness as a parent would be more readily available in Montana. Qualified expert witnesses as to whether custody in the mother would likely result in serious emotional or physical damage to the child would also be more accessible as expert witnesses lacking knowledge of the tribal culture and values may not be “qualified” to give an opinion. Id. at 207 , 635 P.2d at 192 . The court further indicated that: Accessibility to proof would seem to be the principal factor on which state courts could rely to retain jurisdiction. Indian Child Welfare: A Jurisdictional Approach, 21 Ariz.L.Rev. 1123, 1143 (1979). The author points out: (1) If the tribe desires that the case be heard by the tribal court, distance from the reservation in and of itself would not be sufficient “good cause” for the state court to refuse to transfer the proceedings despite the expense, and (2) in most instances an Indian parent will call witnesses residing on the reservation to rebut evidence as to parental unfitness and the state court must make a *567 determination as to which party is most able to bear the expense of producing witnesses in distant courts. The only justification for retention of jurisdiction in Arizona is the presence of the child and the prospective adoptive parents. However, the issue in these termination proceedings is not the fitness of the adoptive parents but rather the unfitness of the parent whose relationship is sought to be severed. Id. at 206-07 , 635 P.2d at 191-192 . But cf. In Interest of J.R.H., 358 N.W.2d 311 (Iowa 1984) (good cause to deny transfer may arise from geographical obstacles). In the case sub judice the trial court indicated: Additional help in ascertaining the factors to be included in considering “good cause to the contrary” can be found in 44 Fed.Reg. 24000, 42001 R.G. (i) (1979). Therein, it was stated that good cause would include, but not be limited to the following elements: 1. Whether or not the child’s biological parents were unavailable; 2. Whether or not an Indian custodian has been appointed; 3. How much contact the child has had with the tribe for a significant period of time; 4. Whether or not the child has resided on the reservation for a significant period of time; 5. If the child is over 12 years old, whether he or she has indicated an opposition to the transfer. (Trial Court Opinion at 9). Applying these guidelines: in addition to the fact that there is credible testimony that if the child or the Respondent were to have to travel to South Dakota, the child’s physical and mental health would most likely be seriously impaired, and also considering that the child has had very little conscious associa *568 tion with the tribe and the Indian family during her life, we find there is good cause to retain jurisdiction____ (Trial Court Opinion at 10). I believe the trial court erred in applying the above listed factors. Those factors constitute an early form of guidelines published by the Secretary of the Interior. All five criteria that were listed in the earlier version of the guidelines were highly controversial. Comments on the first two criteria were almost unanimously negative— These criteria were criticized as irrelevant and arbitrary____ Although there was some support for the third and fourth criteria, the preponderance of the comment concerning them was critical____ It is recommended that in most cases state court judges not be called upon to determined (sic) whether or not a child’s contacts with a reservation are so limited that a case should not be transferred. Guidelines for State Courts: Indian Child Custody Proceedings, C. 3. Commentary, 44 Fed.Reg. 67584, 67591 (1979). The revised Guidelines state: Determination of Good Cause to the Contrary (a) Good cause not to transfer the proceeding exists if the Indian child’s tribe does not have a tribal court____ (b) Good cause not to transfer the proceeding may exist if any of the following circumstances exists: (i) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing. (ii) The Indian child is over twelve years of age and objects to the transfer. (iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses. (iv) The parents of a child over five years of age are not available and the child has had little or no contact with the child’s tribe. *569 (c) Socio-economic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in a determination that good cause exists. (d) The burden of establishing good cause to the contrary shall be on the party opposing the transfer. Guidelines for State Courts; Indian Child Custody Proceedings, C. 3 Determination of Good Cause to the Contrary, 44 Fed.Reg. 67584, 67591 (1979). 1 Applying the revised Guidelines to the present case, it is uncontroverted that the tribe has a tribal court; that the proceeding was not at an advanced stage when the petition to transfer was received; the child was under five years of age. Although the child may have had little contact with the tribe, the commentary to the Guidelines, previously mentioned, recommends against state court judges basing a transfer request on a child’s limited tribal contact. The determinative factor under the guidelines therefore would be whether the evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses. The trial court indicated that many persons who would be called as witnesses would be from Pennsylvania. However, I agree with the Arizona Court of Appeals that, “the issue in these termination proceedings is not the fitness of the adoptive parents but rather the unfitness of the parents whose relationship is sought to be severed.” Matter of Appeal in Pima County, supra, 130 Ariz. at 207 , 635 P.2d at 192 . Evidence concerning the parent’s fitness is the relevant inquiry. Transfer of this case to the Tribe pursuant to 25 U.S.C.A. § 1911 (b) would have been in my judgment in keeping with the declared policy of Congress “to protect the best interests of Indian children and to promote stability and security of Indian tribes and families ...” 25 U.S.C.A. *570 § 1902 . Failure of the hearing court to transfer the proceedings was an abuse of discretion. . Although the Guidelines are not published as regulations and therefore have no binding legislative effect on this court, I find the Department of the Interior’s interpretation of the term "good cause" to be beneficial in considering this matter. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9754547. Public record. Not legal advice.