relying on state law but warning that its application cannot frustrate the purpose of ICWA
How later courts described this case
- relying on state law but warning that its application cannot frustrate the purpose of ICWA
- determining that clear and convincing standard of proof applies to section 1915(b) determinations
- reversing trial court’s denial of father and tribe’s joint petition to invalidate, for lack of notice compliance under ICWA, termination of father’s parental rights and court’s consent to adoption
- A clear and convincing standard will foster ICWA policies “and the preferences stated therein and will assist with the effort to avoid inadvertent interjection of cultural bias into the proceeding.”
Written by the judges who cited it.
The opinion
GOODMAN, J.,
dissenting:
1 1 I respectfully dissent to the majority's statutory interpretation. Further, I dissent to the majority's imposition of an additional, ambiguous, and unspecified duty on an attorney to follow the requirements of the state and federal Indian Child Welfare Acts when the attorney is already under a sworn duty to abide by all laws applicable in this state;, which presumably includes all Indian Child Welfare Acts. The majority states that making an attorney responsible to follow all Indian Child Welfare Acts is analogous to the duty imposed on an attorney to follow the Fair Debt Collection Act. I respectfully disagree. The Fair Debt Collection Act applies to an attorney who presumably is no longer an advocate for his client because he is now trying to collect a debt from the client, and thus is now in the relationship of a ereditor to the client. This differs from an attorney who is always in an attorney-client relationship with a potential adoptive parent and is never in an adversarial position to that client.