Petition for Writ of Certiorari — Debra F. v. Wisconsin

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parent or Indian custodian is likely to result in serious

‘emotional or physical damage to the child.

(f) Parental mghts termination orders; evidence;

determination of damages to child

No. termination of parental rights may be ordered im such

proceeding in the absence of a determination, supported by

evidence beyond a reasonable doubt, including testimony of

qualified expert witnesses, that the continued custody of the

child by the parent or Indian custodian is likely to result in

serious emotional or physical damage to the child.

INTRODUCTION

Section 1912(d) of the Indian Child Welfare Act of

1978 (“the ICWA”), 25 U.S.C. § 1901 et seq., requires the

State to prove that “active efforts have been made to provide

remedial services and rehabilitative programs designed to

prevent the breakup of the Indian family and that these

efforts have proved unsuccessful.” The section is silent as to

the State’s burden of proof. This silence leads to the question

which is at the heart of this Petition: Do the protections

afforded by the Due Process Clause as well as fundamental

principles of statutory interpretation require the State to

prove beyond a reasonable Joubt that it has made “active

efforts . . . to prevent the breakup of the Indian family” in

termination of parental rights (“TPR”) cases? The Petitioner,

Debra F. (“Debra”), respectfully submits that the Due

Process Clause and rules of statutory interpretation require

just such a showing.

In this case, the Wisconsin Court of Appeals ignored

a fundamental tenet of statutory interpretation — subsections

of statutes must be read in the context of both the entire

section and the statute as a whole. When read in context,

keeping in mind the ICWA'’s stated purposes and

Congressional findings on the importance of preserving

Indian culture, due process requires the State to prove beyond

a reasonable doubt that “active efforts have been made to . . .

prevent the breakup of the Indian family” in TPR cases

involving Indian children.

STATEMENT OF THE CASE

. The tssue before the Court is precise: Should the State

have to prove beyond a reasonable doubt that “active efforts

have been made to . . . prevent the breakup of the Indian

family” in TPR cases? The issue is purely legal in nature,

and the facts surrounding Debra’s parenting are not relevant.

Given the history of governmental treatment of Indians,

clearly stated public policy underlying the ICWA, and the

fact that nothing is more fundamental than the right to parent

one’s child, there is only one answer: The burden of proof

should be beyond a reasonable doubt. Debra respectfully

requests that the Court grant this Petition to provide future

guidance to fact-finders in TPR cases invoking the ICWA.

This is ani appeal from the Supreme Court of

Wisconsin’s refusal to review the Wisconsin Court of

Appeals’ decision, which affirmed the judgment and order

entered by the Circuit Court for Milwaukee County,

Children’s Division, on June 24, 2004. The circuit court

judgment terminated Debra’s parental rights as to her son,

Branden F. (“Branden”).

Branden was found to be a child in need of protection

or services on September 15, 1999. Jn re Branden F., 2005

WI App 88, 4 3, 695 N.W.2d 905 (unpublished opinion). On

June 25, 2002, the State filed a petition seeking to terminate

Debra’s parental rights on the grounds that Debra had failed

to assume parental responsibility. /d. at ¥ 4.

On July 24, 2004, the White Earth Band of the

Minnesota Chippewa Tribe (the “Tribe”) notified the court

that Branden was eligible for enrollment as a tribal member,

thus invoking the protections offered by the ICWA. /d.

The first trial in this matter ended in a mistrial. /d. at

7 6. During the second trial, the court heard oral argument

regarding the proper burden of proof for “active efforts” for

the purposes of the jury instructions and special verdict

questions. Debra argued that the burden should be beyond a

reasonable doubt, but the court agreed with the State and held

that it need only prove “active efforts” by clear and

convincing evidence. (See P-App. at C-1 to C-12.)

The final version of the jury instruction read:

The burden of proof as to Questions 1, 2,

and 3 of the Special Verdict is upon the

Petitioner to convince you to a reasonable

certainty by evidence that is clear,

satisfactory and convincing that the question

should be answered “yes.” If you are not so

satisfied, you must answer that particular

question “no.”

Clear, satisfactory, and convincing evidence

is evidence which when weighed against

that opposed to it clearly has more

convincing power. It is evidence which

satisfies and convinces you that “yes”

should be the answer because of its greater

weight and clear convincing power. If you

have to guess what the answer should be

after discussing all evidence which relates

to a particular question, then the party

having the burden of proof as to that

question has not met the required burden. . ..

(R.51; see P-App. at D-1 to D-2.)

The special verdict form read, in relevant part:

QUESTION 2: From July 11, 2002, through

today’s date, has the Bureau of Milwaukee

Child Welfare made active efforts to

provide remedial services and rehabilitative

programs ‘uiialind to assist Debra F[.] in

regaining custody of Branden F{.]?

If you answered Question 2 “Yes,” answer

Question 3.

QUESTION 3: Have the efforts referred to

in Question 2 proven unsuccessful?

(R.52; see P-App. at E-1 to E-2.)

On May 21, 2004, the jury answered these questions

in the affirmative. Jn re Branden F., 2005 WI App 88, 4 6,

695 N.W.2d 905; see P-App. at E-l to E-2. At the

dispositional hearing on June 24, 2004, the trial court found

that the State had satisfied the requirements of Wisconsin law

and the ICWA, and it terminated Debra’s parental rights. Jd.

at ¥ 7.

Debra appealed the burden of proof issue to the

Wisconsin Court of Appeals and requested that it reverse the

trial court’s judgment and order a new trial. She argued that

the trial court had erred when it relied on Santosky v.

Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599

(1982), in support of its adoption of the clear and convincing

evidence standard:

Next, the trial court cited Santosky to

support its adoption of the clear and

convincing evidence standard. Notably,

Santosky, although a TPR case, was not an

ICWA case. In that case, the Court held that

due process required a minimum standard of

proof of clear and convincing evidence in

TPR proceedings, because (1) the private

interests affected by the proceedings are

“commanding”; (2) the risk of error created

by the State’s chosen procedure is

“substantial”; and (3) the countervailing

government interest in supporting the use of

the challenged procedures is “comparatively

slight.”

Santosky commands that all TPR

proceedings require a burden of proof of at

least clear and convincing evidence. But

ICWA creates additional protections for the

parent and requires a higher burden of proof

in TPR proceedings.

Moreover, ICWA was created as a response

to the extreme cultural bias against

American Indians. As explicitly recognized

by ICWA, there is an even greater risk for

cultural bias in ICWA proceedings against

Indian parents than in normal TPR

proceedings, further supporting the need for

a higher burden of proof.

(See P-App. at F-1 to F-5) (footnotes omitted).

Debra reiterated her due process argument in her

Reply Brief to the court of appeals:

When applied correctly, ICWA provides

additional protections to parents like Debra.

Here, the trial court stripped § 1912(d) of its

protections. Contrary to the State’s

. 1!

incredible assertion, Debra’s Due Process

protection was certainly not enhanced when

the trial court submitted § 1912(d) to the

jury with a lesser burden of proof.

(See P-App. at G-1 to G-2) (footnote omitted).

The court of appeals denied Debra’s appeal and

affirmed the trial court’s judgment. /d. at $1. The court of

appeals found that the trial court did not err in requiring the

State to prove the active efforts requirement by clear and

convincing evidence. /d. at J 19.

On April 21, 2005, Debra petitioned the Supreme

Court of Wisconsin to review the court of appeals’ decision.

She again argued that her due process rights were violated

when the court of appeals affirmed the trial court’s ruling:

The lower courts also misconstrued the

holding in Santosky, finding that it

supported the decision that § 1912(d) need

only be proved by clear and convincing

evidence. Yet Santosky was not a TPR case

where the ICWA applied. Rather, the

United States Supreme Court held that due

process requires states to support their

allegations under state law in TPR cases by

at least clear and convincing evidence. It

was not a TPR case that invoked the ICWA.

The ICWA was enacted to provide

additional protections for the parent, and it

requires a higher burden of proof in TPR

proceedings. The ICWA was created as a

response to the extreme cultural bias against

American Indians. As explicitly recognized

by the ICWA, there is an even greater risk

for cultural bias in TPR proceedings against

Indian parents than against non-Indian

parents, further supporting the need for a

higher burden of proof.

(See P-App. at H-| to H-3) (footnotes omitted).

The Supreme Court of Wisconsin denied Debra’s Petition for

Review on June 1, 2005. (See P-App. at B-1 to B-2.)

Debra now petitions this Court and respectfully

requests that it grant a Writ of Certiorari to review the

Wisconsin Court of Appeals’ decision affirming the trial

court’s adoption of the clear and convincing evidence burden

of proof for the “active efforts” requirement under § 1912(d),

and its judgment terminating her parental mghts as to

Branden.

- REASONS FOR GRANTING THE PETITION

I. DUE PROCESS REQUIRES THAT THE STATE

PROVE BEYOND A REASONABLE DOUBT

THAT IT MADE ACTIVE EFFORTS TO

PREVENT THE BREAKUP OF THE INDIAN

FAMILY.

A. Public Policy Calls for a Higher Burden of

Proof in TPR Cases That Involve Indian

Children.

The Indian Child Welfare Act was enacted in 1978

“to protect the best interests of Indian children and to

promote the stability and security of Indian tribes and

families.” 25 U.S.C. § 1902. It was a response to the

“alarmingly high percentage” of Indian families that were

destroyed by having their children placed in non-Jndian

foster and adoptive homes. /d § 1901(4). Congress

specifically found that states “have often failed to recognize

the essential tribal relations of Indian people and the cultural

and social standards prevailing in Indian communities and

families.” Jd. § 1901(5).

The ICWA was created as a response to the extreme

cultural bias against American Indians. See 25 U.S.C. §

1901(4)-{S). As explicitly recognized by the ICWA, there is

an even greater risk for cultural bias in TPR proceedings

against Indian parents than in TPR proceedings that do not

involve Indian parents, further supporting the need for a

higher burden of proof. Jd. § 1901(5).

Pursuant to the goal of protecting Indian culture and

heritage, the Bureau of Indian Affairs expressed its clear

preference for keeping Indian families intact by deferring to

tribal judgment on matters concerning the custody of Indian

children.’ Any state court reaching a result contrary to these

' Bureau of Indian Affairs, Guidelines for State “ourts; Indian Child

Custody Proceedings A.1., 44 Fed. Reg. 67,584 (.. +v. 26, 1979) (“BIA

Guidelines”) (attached hereto as P-App. at I-1 to 1-29). While not binding,

these guidelines have been accepted as persuasive authority by this Court,

as they are a strong indication of the spirit and purpose of the ICWA.

See, e.g., Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30,

51-53, 109 S. Ct. 1597, 1610, 104 L Ed. 2d 29 (1989); see also, In the

Matter of S.M.H., 33 Kan. App. 2d 424, 433, 103 P.2d 976, 983 (2005);

In re the Matter of A.G., 326 Mont. 403, 407, 109 P.3d 756, 759 (2005);

In the Interest of Brittany C., 13 Neb. App. 411, 422, 693 N.W.2d 592,

602 (2005); Fresno County Dep't of Children & Family Servs. v.

Superior Court, 122 Cal. App. 4th 626, 642, 19 Cal. Rptr. 3d 155, 165

(2004), Jn the Interest of D.M., et al., 2004 SD 90, ¢ 10, 685 N.W.2d 768,

770-71; In re D.S.P., 166 Wis. 2d 464, 476-77, 480 N.W.2d 234, 239-40

(1992); /n the Matter of M.S.S., 465 N.W.2d 412, 418-19 (Minn. Ct. App.

preferences must follow strict procedures and meet the

stringent requirements of the ICWA. (See BIA Guidelines

A.1; P-App. at I-10 to I-11.)

Furthermore, and significantly in this case, because

the ICWA is a remedial statute, any ambiguities in the ICWA

must be resolved “in favor of the result that is most

consistent with th{e] preferences” of the ICWA, the federal

regulations implementing the ICWA, the BIA Guidelines and

any state statutes, regulations. or rules promulgated to

implement the ICWA. /d.

B. Due Process Requires the State to Prove

“Active Efforts” by Proof Beyond a

Reasonable Doubt.

In Santosky this Court acknowledged and

emphasized the importance of fundamentally fair procedures

in TPR cases, in which parents face a judgment forever

terminating their parental rights.

The fundamental liberty interest of

natural parents in the care, custody

and management of their child does

not evaporate simply because they

have not been model parents or have

lost temporary custody of their child

to the State. Even when blood

relationships are strained, parents

retain a vital interest in preventing

the irretrievable destruction of their

family life. If anything, persons

faced with forced dissolution of their

parental rights have a more critical

need for procedural protections than

do those resisting state intervention

into ongoing family affairs. When

the State moves to destroy weakened

familial bonds, it must provide the

parents with fundamentally fair

procedures.

Id. at 753-54, 102 S. Ct. at 1394-95.

The court also recognized that due process demands

that the parent know the standard of proof prior to a hearing:

Since the litigants and the factfinder

must know at the outset of a given

proceeding how the risk of. error

will be allocated, the standard of

proof necessarily must be calibrated

in advance. Retrospective case-by-

case review cannot preserve

fundamental fairness when a class

of proceedings is governed by a

constitutionally defective

evidentiary standard.

Id. at 757, 102 S. Ct. at 1397,

With those principles in mind, the Court applied the

three-part test that was first enunciated in Matthews v.

Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18

(1976), holding that due process requires that the state

support its allegations in TPR cases that do not implicate the

ICWA by at least clear and convincing evidence. Santosky,

455 U.S. at 748, 102 S. Ct. at 1391-92. In so holding, the

Court invalidated the “fair preponderance of the evidence”

standard found in the New York Family Court Act for TPR

cases, as it denied parents due process. /d. at 748, 102 S. Ct.

at 1391-92.

Matthews requires the Court to balance (1) the private

interests affected by the proceeding, (2) the risk of error

created by the State’s chosen procedure, and (3) the

countervailing governmental interest supporting use of the

challenged procedure. 424 U.S. at 335, 96 S. Ct. at 903, 47

L. Ed. 2d 18.

Applying the first factor to TPR cases, the Court

found in Santosky that the effect on parents’ private interests

in parenting their child is “commanding.” 455 U.S. at 758,

102 S. Ct. at 1397. “A natural parent’s ‘desire for and right

to ‘the companionship, care, custody, and management of his

or her children’ is an interest far more precious than any

property right.”” /d. at 758-59, 102 S. Ct. at 1397 (citations

omitted). In seeking to terminate a parent’s rights, the state

wants to not only “infringe that fundamental liberty interest,

but to end it.” /d. at 759, 102 S. Ct. at 1397. “Few forms of

state action are both so severe and so irreversible.” /d., 102

S. Ct. at 1398.

Turning to the second factor, the Court found that the

risk of erroneous factfinding was high. /d. et 762, 102 S. Ct.

at 1399. The Court found that during TPR proceedings,

“numerous factors combine to magnify the risk of erroneous

factfinding.” /d. Such proceedings “employ imprecise

substantive standards that leave determinations unusually

open to the subjective values of the judge.” /d The judge

must evaluate “the nature and quality of a complex series of

encounters among the agency, the parents, and the child,”

and it therefore “possesses unusual discretion to underweigh

probative facts that might favor the parent.” Jd. The Court

also noted that “because parents subject to termination

proceedings are often poor, uneducated, or members of

Minority groups, such proceedings are often vulnerable to

judgments based on cultural or class bias.” /d. at 763, 102 S.

Ct. at 1399-1400.

Lastly, the Court tound that the countervailing

governmental interest favoring a lower standard of proof was

comparatively slight. /d. at 758, 102 S. Ct. at 1397. “A

stricter standard of proof would reduce factual error without

imposing substantial fiscal burdens upon the State .. . . Nor

would an elevated standard of proof create any real

administrative burdens for the State’s factfinders.” Jd. at

767, 102 S. Ct. at 1402.

The unique issues present in cases involving Indian

children call for even greater due process protections than

those set forth for TPR cases that do not implicate the ICWA.

First, the private interests of Indian parents in raising their

children are equally “commanding” and arguably, according

to Congressional findings, carry even more weight if the fact

finder considers the societal interest in maintaining Indian

culture by preserving its families. Second, although Santosky

was not an ICWA case, this Court recognized the risk of bias _

inherent in all TPR proceedings. Congress clearly found that

this risk is even greater in TPR cases involving Indian

parents. See 25 U.S.C. § 1901(4). Finally, the State can

articulate no greater interest in being held to a low burden of

proof than it could in Santosky. Thus, it is evident that under

the three-part test set forth in that case, there is a need for a

higher burden of proof requirement in ICWA cases to ensure

that Indian parents receive due process.

The Court has already noted in Santosky that

termination of an Indian parent’s rights under the ICWA

requires the highest standard of proof, stating, “The only

analogous federal statute of which we are aware permits

termination of parental rights solely upon ‘evidence beyond a

reasonable doubt.’” Jd. at 749-50, 102 S. Ct. at 1393 (citing

§ 1912(f)). Notably, this Court did not indicate that some

~ elements need to be proved beyond a reasonable doubt while

others could be proved by a lesser burden. Aithough this

language was dicta, this Court did take notice of the

additional protections Indian parents are afforded by the

ICWA, and Debra respectfully requests this Court to accept

this Petition and squarely address this issue.

‘This Court has not addressed this important question

of federal law. This case presents the Court with an

opportunity to provide guidance to future fact-finders in TPR

cases implicating the ICWA. Debra respectfully submits that

due process requires States to prove beyond a reasonable

doubt that they have made “active efforts” to prevent the

breakup of the Indian family in TPR cases which involve

Indian children.

IL. THE WISCONSIN COURTS’ ADOPTION OF

THE BURDEN OF PROOF OF CLEAR AND

CONVINCING EVIDENCE FOR § 1912(D) IS IN

CONFLICT WITH OTHER STATE COURTS’

DECISIONS AND WARRANTS’ REVIEW

UNDER SUPREME COURT RULE 10(B).

An intermediate appellate court may function as 4

“court of last resort” for the purposes of Supreme Court Rule

10_ when the state supreme court denies review, including

discretionary review. See Perry v. Thomas, 482 U.S. 482,

489 & n.7, 107 S. Ct. 2520, 96 L. Ed. 2d 426 (1987);

California v. Trombetta, 467 U.S. 479, 484, 104 S. Ct. 2528,

81 L. Ed. 2d 413 (1984); Interstate Circuit, Inc. v. City of

Dallas,.390 U.S. 676, 678 n.1, 88 S. Ct. 1298, 20 L. Ed. 2d

225 (1968).

The Supreme Court of Wisconsin denied Debra’s

Petition for review (see P-App. at B-! to B-2), and therefore,

the Wisconsin Court of Appeals was the effective “court of

last resort” for this Petitioner.

Jurisdictions are split over whether the State must

prove “active efforts” by clear and convincing evidence or

beyond a reasonable doubt.’ Debra respectfully requests that

the Court grant this Petition and decide this issue to ensure

uniform application of the ICWA among state courts.

A. Fundamental Tenets of Statutory

Construction Require the Higher Burden of

Proof.

The court of appeals ignored the long-standing rule of

statutory construction that directs courts to “look to the

particular statutory language at issue, as well as the language

and design of the statute as a whole.” See, e.g., McCarthy v.

Bronson, 500 U.S. 136, 139, 111 S. Ct. 1737, 1740, 114 L.

Ed. 2d 194 (1991); Crandon v. United States, 494 U.S. 152,

158, 110 S. Ct. 997, 1001, 108 L. E. 2d 132 (1990); K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S. Ct. 1811,

1818, 100 L. Ed. 2d 313 (1988); Erlenbaugh v. United States,

409 U.S. 239, 244, 93 S. Ct. 477, 480 34 L. Ed. 2d 446

(1972). Courts must “read the language of a specific

statutory section in the context of the entire statute,”

? See In the Matter of G.S. & S.S., 2002 MT 245, 4 31, 312 Mont. 108,

119, 59 P.3d 1063, 1071 (lists cases reflecting split among courts).

interpreting it “in light of its textually manifest scope, context

and purpose.” Bosco v. Labor & Indus. Review Comm'n,

2004 WI 77 at ¥ 23, 272 Wis. 2d 586, 604, 681 N.W.2d 157,

166.

The larger context of § 1912 supports the requirement -

that “active efforts” be proved beyond a reasonable doubt:

(ce) Foster care placement orders;

evidence; determination of damage

to child

No foster care placement may be

ordered in such proceeding in the

absence of a _ determination,

supported by clear and convincing

evidence, including testimony of

qualified expert witnesses, that the

continued custody of the child by the

parent or Indian custodian is likely

to result in serious emotional or

physical damage to the child.

(f) Parental rights termination

orders; evidence; determination of

damage to child

No termination of parental rights

may be ordered in such proceeding

in the absence of-a determination,

supported by evidence beyond a

- reasonable doubt, including

testimony of qualified expert

—

witnesses, that the continued custody

of the child by the parent or Indian

custodian is likely to result in serious

emotional or physical damage to the

child.

25 U.S.C. § 1912(e)-(f) (emphasis added).

As several other courts have concluded, it is logical

that the burden of proof required to prove “active efforts”

depends on the nature of the proceeding — in a foster care

placement proceeding, “active efforts” must be proved by

clear and convincing evidence, but in a termination of

parental rights proceeding, “active efforts” must be proved

beyond a reasonable doubt.’

Logically, this seems to be

compelled: If termination of parental

rights of Indian parents to their

children can be ordered only upon a

factual basis shown beyond a

reasonable doubt (§ 1912(f)), and if

termination cannot be _ effected

without a showing of active efforts

to prevent the breakup of the Indian

family and a failure thereof (§

—_— ——

* See, e.g In the Matter of GS. & S.S., 2002 MT 245, 4 33, 312 Mont.

108, 120, 59 P.3d 1063, 1071; Jn the Interest of S.R., 323 N.W.2d 885,

887 (S.D. 1992); In the Matter of M.S.S., 465 N.W.2d 412, 418 (Minn.

Ct. App. 1991); In re L.N.W., 457 N.W.2d 17, 19 (lowa Ct. App. 1990);

In the Matter of Kreft, 148 Mich. App. 682, 693, 384 N.W.2d 843, 849

(1986); In re Morgan, 140 Mich. App. 594, 604, 364 N.W.2d 754, 758

(1985).

1912(d)), then the adequacy of

efforts and futility of them, as

predicates to termination, must

likewise be established beyond a

reasonable doubt. Therefore, we

recognize the reasonable doubt

standard as appropriate in

determining whether the petitioning

party has complied with section

1912(d).

In the Matter of M.S.S., 465 N.W.2d 412, 418 (Minn. Ct.

App. 1991).

B. Courts that Adopted the Lower Burden of

Proof, Including the Wisconsin Court of

Appeals, Ignored Fundamental Principles

of Statutory Interpretation.

Like the court of appeals and trial court in this case,

courts in other jurisdictions that have adopted the clear and

convincing evidence standard* have focused on the absence

of a specified burden of proof in the text of § 1912(d). The

courts state that § 1912(e) and (f) specifically refer to the

requisite burdens of proof, and if Congress had meant for

“active efforts” to be proved beyond a reasonable doubt, it

easily could have said so.” 2005 WI App 88 at 4 20.

* See, e.g., In the Interest of MS., 624 N.W.2d 678 (N.D. 2001); Jn re

Michael G., 63 Cal. App. 4th 700, 74 Cal. Rptr. 2d 642 (1998).

* Adopting that same reasoning, it follows that if Congress had intended

the “active efforts” requirement to be proved by clear and convincing

evidence, it could have specified that burden as well.

Again, the ICWA was enacted to provide additional

protections for Indian parents, and any ambiguity should be

resolved in favor of affording more protection to those

parents, not less. 25 U.S.C. §§ 1901, 1902, 1912(f). As

explicitly recognized by Congress, there is an even greater

risk for cultural bias in TPR proceedings against Indian

parents than against non-Indian parents, further supporting

the need for a higher burden of proof. 25 U.S.C. §§ 1901-

1902.

CONCLUSION

This Petition presents a very important question of

federal law — one implicating due process rights of parents in

cases where the State seeks to take away the fundamental

right to parent an Indian child. Courts of last resort

throughout the country are adopting different burdens of

proof for § 1912(d). Courts that have adopted the clear and

convincing evidence standard have ignored both long-

standing principles of statutory interpretation and

overwhelming evidence of a history of bias against Indian

parents.

Wherefore, based upon all of the foregoing reasons,

Petitioner respectfully asks the Court to grant certiorari

review.

Respectfully submitted this 230 day of August,

2005.

MICHAEL J. GONRING

Counsel of Record

NATALIE C. GIUGNO

JOSEPH O. WILSON

nsel for Petitioner

oe Metin

ARLES & BRADY LLP

411 East Wisconsin Avenue

Suite 2040

Milwaukee, WI 53202-4497

Attorneys for Petitioner

Debra F.

No. .

ee en aren

IN THE

SUPREME COURT OF THE UNITED STATES

DEBRA F.

Petitioner,

vs.

STATE OF WISCONSIN

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court of Wisconsin

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI

MICHAEL J. GONRING

Counsel of Record

NATALIE C. GIUGNO

JOSEPH O. WILSON

Counsel for Petitioner

QUARLES & BRADY LLP

ve 411 EAST WISCONSIN AVENUE

MILWAUKEE, WI 53202-4497

(414) 277-5000

APPENDIX INDEX

Wisconsin Court of Appeals Decision ...A-1 to A-16

Supreme Court of Wisconsin Order ........B-1 to B-2

Excerpts from Transcript of Circuit Court

PIE wccnicececocececevsccccoovcesenecs C-1 to C-12

Jury Instructions .................. mabcenaints D-1 to D-2

NID WOES scrcpetcdncsocoussccsinoccscneuee E-1 to E-2

Excerpts from Debra F.’s Brief To Wisconsin Court

ee culsisabhcadcadvsysudiebonseptenicen F-1 to F-5

Excerpts from Debra F.’s Reply Brief to Wisconsin

RE HIIEEEE ccciconcecnccsccsocoscscboune G-1 to G-2

Excerpts from Debra F.’s Petition for Review to

Supreme Court of Wisconsin ................ H-1 to H-3

Bureau of Indian Affairs Guidelines ........ I-1 to I-29

COURT OF APPEALS DECISION

DATED AND FILED MARCH 22, 2005

Cornelia G. Clark

Clerk of Court of Appeals

Appeal No. 04-2560 Cir. Ct. No. 02TP000437

STATE OF WISCONSIN

IN COURT OF APPEALS

DISTRICT I

IN RE THE TERMINATION OF PARENTAL RIGHTS

TO BRADEN F., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

DEBRA F.,

RESPONDENT-APPELLANT.

APPEAL from order of the circuit court for

Milwaukee County: JOSEPH R. WALL, Judge. Affirmed.

ql WEDEMEYER, P.J.' Debra F. appeals from an order

terminating her parental rights to her son, Branden F., born

October 20, 1998. She also appeals from an order denying her

postdisposition motion. Debra claims: (1) the trial court erred

' This appeal is decided by one judge pursuant to WIS. STAT. §

752.31(2) (2003-04).

P-App. A-1

when it denied the motion to transfer this termination case to the

tribal court; (2) the trial court erred when it modified language

from the Indian Child Welfare Act (“ICWA”) in formulating

jury instructions and the special verdict questions; and (3) her

trial counsel provided ineffective assistance. Because each

issue is resolved in favor of upholding the orders, this court

affirms.

BACKGROUND

q2 When Branden was born on October 20, 1998,

there was cocaine in his bloodstream. Debra signed a voluntary

agreement, placing Branden into foster care, where he remains

to this day. Since December 20, 1998, Branden has lived in the

home of Sharon and Mark Traner as a foster child.

» Approximately six weeks after Branden was

born, Debra was in an altercation with one of her adult sons,

was charged criminally, and spent sixteen months in prison.

During that time, she participated in alcohol and drug abuse

counseling, anger management, and parenting classes. She was

released in August of 2000. On September 15, 1999, Branden

was found to be a child in need of protection or services and

continued placement in the Traner home was approved by the

Bureau of Milwaukee Child Welfare (Bureau). This order was

extended annually.

14 On June 25, 2002, the State filed a petition

seeking to terminate Debra’s parental rights on the grounds that

Debra had failed to assume parental responsibility pursuant to

WIS. STAT § 48.415(6) (2001-02). In July 2002, the White

Earth Band of Minnesota Chippewa Tribe determined that

Branden was eligible for enrollment in the tribe, thus triggering

application of the Indian Child Welfare Act of 1978, 25 U.S.C.

§ 1901, et. seq. On August 19, 2002, the tribe

P-App. A-2

filed a motion to intervene in the TPR proceedings. The trial

court granted the tribe’s motion in October 2002.

95 On April 3, 2003, the tribe filed a motion to

transfer jurisdiction of the TPR case to the tribal court,

pursuant to 25 U.S.C. § 1911(b). The State and the guardian

ad litem opposed the motion. On June 16, 2003, the trial

court denied the motion based on the untimeliness of the

tribe’s motion and the best interests of Branden.

16 The first trial in this matter resulted in a

mistrial. The second trial occurred in May 2004. At the

conclusion of the trial, the jury answered each of the

following special verdict questions affirmatively:

QUESTION 1: Has Debra [F.]

failed to assume parental

responsibility for Branden [F.}?

QUESTION 2: From July 11, 2002,

through today’s date, has the Bureau

of Milwaukee Child Welfare made

active efforts to provide remedial

services and rehabilitative programs

designed to assist Debra [F.] in

regaining custody of Branden [F.}?

QUESTION 3: Have the efforts

referred to in Question 2 proved

unsuccessful?

QUESTION 4: Is it likely that

Branden [F.} will suffer serious

physical or emotional harm if, upon

conclusion of this trial, he is

removed from his current foster

home placement, placed with Debra

[F.] and continued in her custody?

P-App. A-3

q7 At the June 24, 2004 dispositional hearing, the

trial court found that it was in Branden’s best interests to

terminate Debra’s parental rights. An order to that effect was

entered. Debra filed a postdisposition motion seeking a new

trial based on ineffective assistance of counsel. The trial court

denied the motion. Debra now appeals.

DISCUSSION

A. Transfer of Jurisdiction.

48 Debra argues that the trial court erred in denying

the tribe’s motion to transfer jurisdiction of this case to the tribal

court. The State responds that the trial court’s decision to retain

jurisdiction was correct. This court agrees with the State.

a The question of whether the trial court erred in

denying the tribe’s motion requesting transfer of jurisdiction

requires statutory interpretation of the ICWA, which is a

question of law reviewed independently. See in re Shawnda

G., 2001 WI App 194, 96, 247 Wis. 2d 158, 634 N.W.2d 140.

The pertinent portion of the ICWA requires the trial court to

transfer the proceeding to the jurisdiction of the tribe unless

good cause exists. See 25 US.C. § 1911(b); see also

Shawnda G., 247 Wis. 2d 158, 6. Although this particular

provision does not define good cause, the Bureau of Indian

Affairs guidelines offer guidance. Specifically, the guidelines

state that good cause exists to deny the transfer when “(t]he

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.” 44 Fed. Reg. 67,

584-91 (1979), BIA Guidelines C.3(bi).

910 #Here, Debra argues that the case was not at an

advanced stage because the motion to transfer was filed eight

months before the trial-date. The State and the guardian ad

litem respond that the trial date is not the dispositive

P-App. A-4

factor in addressing the timeliness of the motion.

Branden has never lived with Debra because he was

placed in foster care immediately after he was born as a

result of cocaine in his bloodstream. The Bureau

contacted the tribe in November 1998 to tmquire about

any tribal affiliation. The tribe responded with two

separate letters declaring that Branden was not eligible

for tribal membership. The tribe did not take any action

when Branden was found to be a child in need of

protection or services. The tribe made no efforts with

respect to Branden or the need to protect his Indian

heritage until after the TPR was filed. It was not until

July 2002 that the tribe decided Branden was eligible for

membership. By that point in time, Branden had lived

with his foster parents for almost four years.

91: The trial court viewed this case as a

continuum and recognized these facts. The tribe initially

denied any affiliation or interest in Branden, let four

years go by, and did not act until the TPR and

permanency planning for Branden occurred. A California

court, facing a similar issue, held that good cause to deny

a tribe’s motion to transfer exists when a tribe fails to

intervene until after the court has engaged in permanency

planning for the child. In re Robert T., 246 Cal. Rptr.

168, 173 (Cal. Ct. App. 1988). In Robert T., the tribe did

not file a motion to transfer jurisdiction until a TPR

petition was filed, over sixteen months after the child was

first detained. Id. at 172. The court found that a tribe’s

motion to transfer should be filed before a child’s

permanency plan becomes TPR and adoption, because the

child forms a bond with the pre-adoptive placement, and

breaking that bond will harm the child. Id. at 173.

912 In the imstant case, like in Robert T., the

tribe waited until after the TPR petition was filed to

request a transfer of jurisdiction. The delay here was

even longer than in the Robert T. case-almost four years.

~ P-App. A-5

Moreover, the tribe declined the invitation to become

involved in this case when Branden was only a few

months old. If the tribe had acted a that time, Branden

could have been placed with an Indian family or other

relatives. The tribe declined the invitation to become

involved at that point in time.’

913 Under these circumstances, this court

concludes that the trial court’s decision to deny transfer of

jurisdiction was not erroneous. The excessive delay of the

tribe to request a transfer constitutes good cause for the trial

court’s decision.

414 This court also concludes that the trial court did

not err in considering Branden’s best interests as it related

to the request to transfer jurisdiction. The timeliness

requirements referred to in the ICWA reflect a concern for

the best interests of Indian children. The trial court’s

consideration of Branden’s best interests was considered as

a factor relating to the untimeliness of the tribe’s attempt to

take jurisdiction of his case. Branden had spent four years

in a period of uncertainty as to his future. At the time the

tribe intervened, Branden was close to obtaining

permanency in his life and adoption by the foster parents

~who had raised him since infancy. To remove him at that

point and transfer his case to tribal court would have created

*Debra argues that this court should not rely on In re Robert T., 246 Cal.

Rptr. 168 (Cal. Ct. App. 1988) because the Robert T. “court ignored the

requirements of ICWA, which is designed to ‘promote the stability and

security of Indian tribes and families’ through deference to ‘the essential

tribal relations of Indian people and the culture and social standards

prevailing in Indian communities and families.”’ (Citations omitted.)

We disagree with Debra’s assessment of the Robert T. case. The court in

Robert T was faced with facts similar to the trial court in the instant case-

whether an Indian tribe's substantial delay in requesting a transfer of

jurisdiction constitutes “good cause” to deny transfer of jurisdiction.

Thus, this court is not persuaded by Debra’s claim that Robert T. offer

“faulty reasoning.”

P-App. A-6

designed to prevent the breakup of the Indian family and

rey lind eh sat poh brat =~ 25 U.S.C. §

1912(d) (emphasis added). The trial court modified the

emphasized language so the jury was instructed as to whether

the State proved that “the Bureau of Milwaukee Child

Welfare has made active efforts to provide remedial services

and rehabilitative programs designed to ... assist Debra [] in

regaining custody of Branden ...." (Emphasis added.) This

* Debra spends a significant portion of her reply bref rebutnng the State's

argument that the ICWA should not apply to children who “have never

been a member of an Indian home or culture.” The trial court reflected

this argument, and imstead related that the ICWA did apply to this case

despite the fact that Branden has never lived with Debra or with the tribe.

As evidenced by the dispute over the modification of the language of

ICWA for the jury instructions and special verdict, this was no doubt a

difficukt case. The facts and circumstances presented here were unique

because Branden was not declared to be an Indian child immediately

upon birth The tral court, nevertheless, made significant efforts to

ensure that the protections offered under the ICWA were followed in ths

case. This court concludes that the trial court did not err in rejecting the

State's request to except this matter from the ICWA. This court declines

to address the broader issue as to whether Wisconsin should adopt the

“existing Indian famuly” doctrine im every case

P-App. A-7

ee eee

language did constitute an erroneous exercise of

discretion.

916 ~—A trial court has wide discretion in issuing jury

instructions based on the facts and circumstances of the case.

State v. Vick, 104 Wis. 2d 678, 690, 312 N.W.2d 489 (1981).

The discretion applies to both choice of language and emphasis.

- Id. at 690-91. This court will not find an erroneous exercise of

discretion if the overall meaning communicated by the

instructions was a correct statement of the law. Fisher v.

Ganja, 168 Wis. 2d 834, 849, 485 N.W.2d 10 (1992).

917 In the factual context of this case, the phrases

“prevent the breakup of the Indian family” and “assist Debra in

regaining custody of Br». n” mean essentially the same thing.

If the active services prowsied by the Bureau resulted in Debra

regaining custody, the breakup of the Indian family is

prevented. The concern the trial court had in using the former

phrase, was that the jury would be confused because Branden

had never resided in Debra’s home. Branden was placed in

the familial relationship with Branden. The trial court’s

decision was reasonable and did not alter the meaning of the

language.

718 | Debra’s second contention is that the trial court

erred in instructing the jury that the “active efforts” requirement

needed to be proven by clear and convincing evidence. Debra

argues that the court should have required proof beyond a

reasonable doubt.

719 The portion of the ICWA at issue here provides

that the State “shall satisfy the court that active efforts have

been made ....” 25 U.S.C. §1912(d) (emphasis added). There is

no specific burden of proof listed. In fact, the plain language of

the statute seems to suggest that this a threshold issue to be

decided by the court, rather than submitted to the jury.

P-App. A-8

Nevertheless, the trial court here submitted the issue to the

jury. The trial court determined that, based on Santosky v.

Kramer, 455 U.S. 745 (1982), the State must prove

allegations to support a TPR petition by at least the clear and

convincing standard. Id. at 747-48.‘

920 =The trial court then needed to determine

whether the clear and convincing standard applied or whether

the higher burden of beyond a reasonable doubt applied.

After reviewing the pertinent case law, the trial court

concluded that the proper standard was clear and convincing

evidence. In reaching this determination, the trial court

relied on a well-reasoned opinion from a California Court of

“Appeals, In re Michael G., 74 Cal. Rptr. 2d 642 (Cal. Ct.

App. 1998). The court noted that sections 1912(e) and

1912(f) specifically referred to the requisite burden of proof

for the requirements in those~sections. Section 1912(f)

requires proof beyond a reasonable doubt, and section

1912(e) requires proof by clear and convincing evidence.

The court then applied the following rule of statutory

construction:

It is a well recognized principle of

statutory construction that when the

Legislature has carefully employed a

term in one place and has excluded it

in another, it should not be implied

where excluded. If Congress meant

for the “active efforts” determination

to be supported by evidence beyond

* Debra argues that Santosky v. Kramer, 455 U.S. 745 (1982) does not

apply because it is not an ICWA case. Although this cx “rt agrees that

Santosky is not controlling authority because it did not specifically

address the burden of proof in an ICWA case, it does offer persuasive

authority because it addressed the burden of proof relative to a TPR

proceeding.

P-App. A-9

a reasonable doubt, it could easily

have said so.

In re Michael G., 74 Cal. Rptr. 2d at 648 (citations omitted).

The trial court in Branden’s case applied the same rule of

statutory construction, see Outagamie County v. Town of

Greenville, 2000 WI App 65, 99, 233 Wis. 2d 566, 608

N.W.2d 414, to conclude that if Congress had wanted the higher

burden to apply to the active efforts determination, it certainly

could have so specified.

921 The trial court thus concluded, based on

statutory construction and the persuasive authority offered in

Sandusky, that the proper standard was clear and

convincing evidence. This court concludes that the trial

court’s analysis is not erroneous. °

922 Debra’s third argument is that the State failed

to prove by clear and convincing evidence that it provided

“active efforts” in this case. In reviewing a finding by a jury,

this court applies a deferential standard of review:

Our review of a jury’s verdict is

narrow. Appellate courts § in

Wisconsin will sustain a jury verdict

if there is any credible evidence to

support it. Moreover, if there is any

credible evidence, under any

reasonable view, that leads to an

inference supporting the jury's

finding, we will not overturn that

finding.

* Debra cites In re D.S.P., 166 Wis. 2d 464, 480 N.W.2d 234 (1992) for

the proposition that the higher burden should be employed. DSP.

however did not address what burden of proof applied to § 1912(d).

Therefore, D.S.P. does not control the burden of proof issue involved in

the instant case.

P-App. A-10

Morden v Continental AG, 2000 WI 51, $38, 235 Wis.

2d 325, 611 N.W. 2d 659 (citations omitted). The record

reflects credible evidence to support the jury’s finding that

the State made “active efforts” in this case. Even before

Brandon was recognized as an Indian child, Debra was

provided with a parenting class, and alcohol and drug abuse

assessment. Treatment was recommended and arranged for

counseling. Debra’s prison term interrupted that treatment.

The Bureau brought Branden to the prison twice to see

Debra, and provided a visitation schedule when Debra was

released from prison. After Debra’s release, the Bureau

again arranged for alcohol and drug abuse treatment and

random urine tests. Visitation and counseling services were

provided up until the date of trial. In fact, Debra conceded

that the Bureau made active efforts to provide services to her

in every way except regarding visitation. Based on the

foregoing, this court cannot overturn the jury’s finding that

active efforts were proven by clear and convincing evidence.°

* Debra contends that the State did not prove “active efforts” as

instructed by the BIA Guidelines to “take into account the prevailing

social and cultural conditions and way of life of the Indian child's tribe,”

and “involve and use the available resources of the extended family, the

tribe, Indian social service agencies and individual Indian care givers.”

See BIA Guidelines D.2 & D.2 commentary. Debra also pointed to a

manual used in lowa in these cases, which defines “active efforts” as a

“vigorous and concerted level of casework beyond the level that typically

constitutes reasonable efforts. “ and provides steps for the Bureau to

comply with the active efforts requirements. The steps are: (1) the

Bureau should request the child's tribe to provide traditional support

actions or services; (2) involve tribal representatives at the earliest point

incase assessment and service planning; (3) consult with extended family

about support services that they could provide for the child and family;

(4) exhaust all family preservation alternatives deemed appropnate by the

tribe before out-of-home foster care placement; (5) provide financial

assistance, transportation and other services or assistance; and (6) allow

frequent visits in the Indian child's home and the homes of the child's

extended family members. See lowa Code § 232B5(19).

P-App. A-I1

423 Debra’s fourth complaint is that the trial court

erroneously modified the ICWA language for a special

verdict question regarding the harm element of § 1912(f). 25

U.S.C. § 1912(f) provides:

No termination of parental nghts

may be ordered in such proceeding

in the absence of a determination,

supported by evidence beyond a

reasonable doubt, including

testimony _of qualified expert

witnesses, that the continued custody

of the child by the parent or Indian

custodian is likely to result in

serious emotional or physical

damage to the child.

924 ~=—s The trial court in this case was faced with the

problem of crafting jury instructions and verdict questions

that would convey the meaning and spirit of the ICWA

without confusing the jury. Clearly, § 1912(f) contemplated

a situation where a parent had custody of a child. That was

not the situation in this case. Branden was not in the

custody of Debra. Thus, instead of using the “continued

custody” language, the tnal court asked the jury to

determine whether Branden would suffer serious emotional

or physical harm if he “was removed from his current foster

home and placed with Debra F[.].”

Debra’s argument fails because the State docs not need to

comply with guidelines particular to an Indian child when the State has

been told twice that the child is not an Indian child. The tribe rejected the

State’s early inquines as to whether Branden was a member of the Indian

tribe. During the time period when the Bureau was making efforts to

return Branden to Debra, the tribe was not involved and had stated that

Branden was not a member. It was not until after the TPR petition was

filed that the tribe entered the case. Thus, the BIA Guidelines and the

lowa manual do not apply.

P-App. A-12

925 Debra argues that this change in language

diverted the jury’s attention away from Debra’s home and

inevitably required an affirmative answer. Although this

court can understand Debra’s concern, this court cannot

conclude that the trial court’s modification of the language

constituted an erroneous exercise of discretion or a violation

of the ICWA.

926 As the guardian ad litem points out, the

harm question of § 1912(f) focuses on the change in

custody. Our supreme court has addressed a situation

similar to this one where Branden has never been in Debra’s

custody:

When the child is not in the custody

of the parents for a protracted

period of time, as in this case, it

would be irrelevant to receive

testimony as to whether or not the

continued custody of the child by

the parents will harm the child.

Therefore, testimony as to what

effect returning the child to the

custody of the parents will have

upon the child is probative of

whether the continued custody of

the child by the parents is likely to

result in harm to the child.

In re D.S.P., 166 Wis. 2d 464, 479, 480 N.W.2d 234

(1992). Here, placing Branden with Debra cannot be

separated from removing him from the only home he has

known for more than four years. The trial court’s

modification of the ICWA language recognized this and

presented the jury with both removal and placement. Under the

circumstances of this case, to follow § 1912(f) word for word

would have been without logic or meaning in this case.

P-App. A-13

#27 Debra’s last complaint about the verdict

involved the time frame incorporated into the harm question.

Section 1912(f) does not specify a time frame. Debra argued

that the question should have been read in the context of a

gradual reunification plan under which Branden could be

returned to Debra’s custody after about six months. The State

and the guardian ad litem respond that the trial court properly

imputed an immediate time frame into the harm question, based

on the purpose of the ICWA and the facts in this case. This

court agrees.

728 In addressing this issue, the trial court noted the

provisions of another federal act pertaining to the welfare of

Indian children, the Adoption and Safe Families Act of 1997.

matter cr sharing the same purpose should be construed

together. It determined that the adoption act required states to

proceed expeditiously to permanence for children once

rehabilitation efforts have failed.

929 The jury unanimously found in this case that

Debra had failed to assume parental responsibility and that

rehabilitation efforts had been unsuccessful. After over four

years of trying, reunification efforts had clearly failed. Thus, to

allow the jury to consider another reunification plan of six

months or more would clearly contravene the objectives of the

adoption act. The trial court, at every point in this case,

attempted to reconcile the language of the ICWA with the

specific facts and circumstances of this case so that the jury

would not be confused and could make a reasonable analysis of

the evidence. The trial court’s actions did not constitute an

erroneous exercise of discretion. Rather, the record

demonstrates that the trial court fashioned jury instructions

and a special verdict to comport with both the facts of this

case and consistent with the purpose of the ICWA.

C. Ineffective Assistance of Counsel.

730 Debra claims she received ineffective

assistance of counsel because her attorney failed to call an

expert witness to rebut the State’s expert witness, who

testified that removing Branden from the foster home and

returning him to Debra’s custody would harm him, The

trial court summarily denied the motion without

conducting a hearing. This court affirms the trial court’s

decision.

431 In reviewing Debra’s ineffective claim, this

court presumes that counsel “rendered adequate assistance

and made all significant decisions in the exercise of

reasonable professional judgment.” Strickland vv.

Washington, 466 U.S. 668, 690 (1984). An evidentiary

hearing is not required in every case. Rather, the trial court

shall conduct a fact-finding hearing on an ineffective

assistance of counsel claim only when the petitioner

alleges sufficient material facts that, if true, entitle him or

her to relief. See State v. Bentley, 201 Wis. 2d 303, 309-

10, 548 N.W.2d 50 (1996). In order to satisfy this

standard, it is suggested that postdisposition motions

“allege the five ‘w’s’ and one ‘h”’; that is, who, what,

where, when, why, and how.” See State v. Allen, 2004 WI

106, 923, 274 Wis. 2d 568, 682 N.W.2d 433.

732 ~=—sidIf. the ‘petitioner does not raise sufficient

facts, if the allegations are merely conclusory or if the

record conclusively shows that the petitioner is not entitled

to relief, the trial court has the discretion to deny a request

for an evidentiary hearing. See Bentley, 201 Wis. 2d at

309-10. Here, this court cannot hold that the trial court

erroneously exercised its discretion when it summarily denied

Debra’s claim.

733 Debra claims that counsel should have called

Dr. Nancy Hawkins to rebut the State’s expert. Debra

P-App. A-15

submitted a portion of Dr. Hawkins’s deposition in support of

her motion and the State submitted the deposition in its

entirety for the court’s review. The trial court found that Dr.

Hawkins’s testimony would not have been relevant to rebut

the State’s witness because Dr. Hawkins’s opinion related to

the issue of termination of Debra’s parental rights, not to the

issue of emotional damage that Branden would suffer if

removed from the foster home and placed with Debra. Debra

did not submit an affidavit or other proof to demonstrate that

Dr. Hawkins would also opine on the issue of emotional harm.

Thus, the trial court concluded that counsel’s decision not to

call Dr. Hawkins was reasonable and not prejudicial.

934 Debra also asserts that counsel should have

found another expert to rebut the State’s witness. However,

Debra’s motion failed to provide any evidence supporting its

contention that such a witness existed. Thus, Debra’s

assertion was merely conclusory and insufficient to require an

evidentiary hearing. The trial court’s decision did not

constitute an erroneous exercise of discretion.

By the Court.- Orders affirmed.

This opinion will not be published. See W/S. STAT.

RULE 809.23(1\(b)4.

P-App. A-16

OFFICE OF THE CLERK

Supreme Court of Wisconsin

110 EAST MAIN STREET, SUITE 215

P.O. Box 1688

MADISON, W1 53701-1688

TELEPHONE (608) 266-1880

FACSIMILE (608) 267-0640

Web Site: www.wicourts.gov

June 1, 2005

To:

Hon. Joseph R. Wall Michael J. Gonring

Milwaukee County Circuit Joseph O. Wilson

Court Judge

10201 Watertown Plank Rd Natalie C. Giugno

Milwaukee, WI 53226 Quarles & Brady

411 E. Wisconsin Ave.

Dan Barlich #2040

Milwaukee County Juvenile Clerk Milwaukee, WI 53202-

10201 Watertown Plank Rd. 446)

Milwaukee, WI 53226

Michael J. Vruno, Jr.

Thomas C. Binger Attorney at Law

Asst. District Attorney 821 W. State St.

Milwaukee, WI 53233 10201 Watertown

Plank Rd.

Milwaukee, WI 53226

You are hereby notified that the Court has entered the

following order:

P-App. B-1

No. 2004AP2560 TPR to Branden F.: State v. Debra F.

L.C.#2002TP437

A petition for review pursuant to Wis. Stat. § 808.10

having been filed on behalf of respondent-appellant-

petitioner, Debra F., and considered by this court;

IT IS ORDERED that the petition for review is

denied, without costs.

Cornelia G. Clark

Clerk of Supreme Court

P-App. B-2

woeonauvest WN =

Mr. Binger’s argument is true that,

why do we instruct the jury to continue if they

found grounds on one. If they reach a verdict

for -- or grounds on one, why do they continue.

They probably don't need to but that's for

language will remain in.

Now, the unanimous verdict. I'm on

Questions 2 and 3. I've been rereading D.S.P.

here, page 474 to 475. And the court says, as

mandated by the ICWA, the circuit court required

that the jury unanimously agree beyond a

reasonable doubt that the continued custody of

the child by the parent is likely to result in

serious emotional or physical damage to the

child.

Then the court goes on to say, the

circuit court also required that the jury

unanimously agree that there had been active

efforts made to provide remedial services and so

on.

Court then says, to satisfy the

requirements of the Wisconsin children's code,

the circuit court then required that the jury be

convinced by clear and convincing evidence that

P-App. C-1

Noe eee es

CSCW OCNAUYMNASWNeK COW! MnNAUYVA WH

NNN N WN

Vtwn-=—

abandonment had been proven. These jury findings

fulfill the burden of proof requirements of both

the IOWA and Wisconsin children's code.

And then they have that followed by a

note. Although the ICWA did not explicitly

require a unanimous verdict, its use is

consistent with the highest burden of proof. As

this issue is not presented by this review, we

decline to decide whether a unanimous verdict was

necessary.

Problem is, that this Supreme Court

doesn't say that. Supreme Court approved of this

language here but they don't say beyond a

reasonable doubt. Reasonable doubt was used in -

the active efforts. They say unanimous verdict

was required as mandated by the ICWA. The

circuit court required that the jury unanimously

agree beyond a reasonable doubt. The reasonable

doubt on the harm issue.

And then they subsequently say -- not

only do they say what the burden of proof was on

the active efforts -- they have a footnote that

says even they -- they say ICWA required it and

the circuit court did it. They have a footnote

that ICWA does not explicitly require a unanimous

P-App. C-2

weemenavra wn

verdict, but its use is consistent with the

highest burden of proof. Which tells me that if

you're going to have a unanimous verdict, it has

to be beyond a reasonable doubt. The implication

by this sentence is pretty clear to me in that

all three [CWA elements have to be beyond a

reasonable doubt. That is the two-parts, active

efforts elements and the harm element.

The footnote says that even though

ICWA didn't require a unanimous verdict, its use

is consistent with the highest burden of proof.

The more I read that, the more I'm convinced that

beyond a reasonable doubt is the appropriate

burden of proof for the active efforts element

and a unanimous verdict is required. Any

objections to that?

MS. JOSET: I concur. It would be

beyond a reasonable doubt and unanimous verdict.

THE COURT: Mr. Binger, do you want to

make a record?

MR. BINGER: This language requires

that active efforts is in dicta in this case.

They clearly do not consider the ramifications of

the issue with regard to active efforts.

The focus of D.S.P. is to the harm

P-App. C-3

—

-oOovuoemsa AU & WH

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also raises an evaluation of continued custody by

the parent would affect the child. And this

isn't the entire focus of D.S.P.'s decision. The

active efforts element is not part of the Court's

decision. They make no finding as to it. This

is almost an aside in the decision.

I don't think we have any authority on

cases as to the standard of active efforts. I

think there is case law from other jurisdictions

which is very persuasive that active efforts

should be clear and convincing. And clearly from

a statutory interpretation point of view, there

is no doubt in my mind when you read Section

1912(d) and the sections that follows it, (e) and

(f), Congress could have put in Section 1219(d)

burden of proof just lke they do in the

following paragraphs. They did not do so. And,

as the Court pointed out, I haven't fully

researched beyond that case.

Santoskv makes it clear that due

process in a termination of parental rights,

requires that there be clear and convincing

evidence. I'm not going to argue for

P-App. C-4

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RRESSRSSSraRroDv—~ovaearnauawn=

preponderance of the evidence standard even

though the Court has invited me to do so.

Nonetheless, I don't think D.S.P. can be a

blinding guide here as far as our decision. I

think we need to look at persuasive authority

You know, the more I look at Section

1912(d), I think there’s case law that says this

is a fact finding decision for the jury. It's

really interesting. The language that is in

1912(d) basically indicates that the Court must

be satisfied that active efforts be made.

Section 1912(e), there will be a determination

made which clearly is the fact finding

determination. The fact that 1912(d) uses

specific language, the Court must be satisfied,

suggests to me that this may not even be a

decision for the fact finders but rather a

preliminary jurisdiction decided by the Court. I

believe we are too far along to make that

argument but I think that, again, weighs in favor

of not holding the State to a beyond a reasonable

doubt standard on this case.

THE COURT: Okay. Ms. Joset?

MS. JOSET: The Court clearly stated

P-App. C-5

Cen AVYVAWN

that they declined to decide whether a unanimous

verdict was necessary. Now, we don't need D.S_P.

to decide whether or not reasonable doubt — and

I agree with unanimous verdict going with the

highest burden of proof. I agree about that. We

don't need D.S.P. to decide whether or not the

reasonable doubt burden of proof is required in

1912(f), the emotional damage part of the

verdict.

However, we don't have that type of

guideline for 1912(d) and clearly D.S.P. is not

deciding that issue. They're not deciding

whether a unanimous verdict was necessary. And

along with that, whether reasonable doubt burden

of proof was necessary.

Among the cases then that Mr. Binger

has provided, those courts decided that the

beyond the reasonable doubt burden was not

required. Because 1912(f) made it clear that

it's required, 1912(d) did not, the courts from

around the country that went the other way made

their rulings. There was really no analysis in

terms of statutory conviction. There was no

analysis at all on those cases that decided

beyond a reasonable doubt.

P-App. C-6

l THE COURT: Okay. We'll take a

2 10-minute break. I need to get some -- you want

3 to make a brief argument?

4 MR. BRABHAM: I concur with the

5 Judge’s analysis.

6 THE COURT: I haven't made a decision.

7 I'm talking out loud what my sense is. What I've

8 been talking about right now is clearly based on

9 my review of D.S.P., but go on.

10 MR. BRABHAM: Simply, at this point,

il Mr. Binger wants the Court to look at persuasive

12 authority from other jurisdictions. I think this

13 is persuasive authority in this jurisdiction. As

14 I said, this is as persuasive as decisions in

15 other jurisdictions.

16 THE COURT: Okay. Let me take a

17 10-minute break.

19 (Break.)

21 THE COURT: I reviewed the

22 determination and, Ms. Joset, do you want to make

23 another argument?

24 24 MS. JOSET: Your Honor, I think that

25 all three ICWA elements should be beyond a

P-App. C-7 |

wmwon aut WN

reasonable doubt and unanimous verdict. I think

D.S.P. is guidance from our own jurisdiction.

The cases that Mr. Binger indicated are outside

of our jurisdiction. | think D.S.P. is the case

that we are now establishing on point authority

and D.S.P. would be the case that we should be

following.

I think based on the reading of

D.S.P., I concur with the Court's thinking out

loud statements prior to the break that that

would require both the beyond a reasonable doubt

and a unanimous verdict as to all those ICWA

elements.

THE COURT: Okay.

MS. JOSET: I just -- may | interject

something else? |

THE COURT: On the jurisdiction, if

you find that beyond a reasonable doubt is the

standard, those including Michigan, Minnesota and

lowa, are all in our general area. They all

accept the beyond a reasonable doubt as the

standard to all three ICWA elements. South

Dakota, Montana have all beyond a reasonable

doubt. Beyond a lesser burden of proof have been

found in Maine, Washington, North Dakota, Idaho,

P-App. C-8

CGOweomenanwmnt WN OW OTA UA PWN

NNN N NY

Ut wn

and California.

MS. JOSET: There is an lowa case, if

I can find it. I was unable to --

THE COURT: Do you have that,

Ms. Joset?

MS. JOSET: I’m sorry.

MR. BINGER: I handed it to Ms. Joset.

MR. VRUNO: What is the site to that?

THE COURT: What does it say?

MS. JOSET: It’s In Re L.N.W., 1990,

457 N.W. 2d 17. That’s requiring proof of beyond

a reasonable doubt.

MR. BINGER: This was out of a lowa

case.

THE COURT: Okay. Well, I am, I am

troubled by-the language in D.S.P. It is dicta.

It’s not the issue of the court — the court

decided. It’s not at all the issue the court

decided or what was presented to the Court.

MR. BINGER: Just one quick comment.

It doesn’t seem like the Supreme Court actually

decided the issue before as to the harm element;

so it’s another limitation.

THE COURT: I am persuaded that the

clear and convincing evidence standard is appropriate for

P-App. C-9

owen avea WN —

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”

RREOBLSSe rs

the active efforts element for a number of

reasons. I don’t want to make a real long record

because we have a few more things on jurisdiction

and we asked the jury to be back at 2:00.

The Statute here, first of all, the

Court is looking at 25 U.S.C. 1912(d), (e) and

(f). Section (d) is the one we're dealing with

that talks about active efforts. The statute

does not provide any burden at all.

Says under State law, any party shall

satisfy the court that active efforts have been

made. So, they're talking about a court there.

What is interesting, they're not even talking

about a jury trial. They're talking about a

court.

Section (e) talks about a foster care

situation and it specifically says clear and

convincing evidence regarding the placement of

the child out of the home. And (f), which we're

talking about in depth, specifically states that

as to the harm aspect, beyond a reasonable doubt.

We're all aware of the different

levels of proof. They note in (e) clear and

convincing evidence. In (f), they're talking

about beyond a reasonable doubt and in (d) they

P-App. C-10

—

No ees oe

CC enNAUsSWHN

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just say satisfy the court.

Again, this is a Santosky case. The

burden in termination of parental rights cases

have to be minimally clear and convincing

evidence. I think the courts that have found it

by a preponderance of evidence, active efforts,

are acting consistent with what Mr. Binger

proffered; that is, that it's kind of a threshold

finding or maybe not. And in reading these .

cases, the analysis is -- there is a lack of

statutory analysis.

I reference In Re the Interest of

M.S., 624 N.W. 2d 678, a North Dakota Supreme

Court case, pages 683 and 684. Good reasoning

here. An Alaska Supreme Court case at 856 P.2d

468. This case discusses this at page 475 and

again at 476. With the focus on preventing the

breakup of Indian families.

In that case, quote, the committee is

advised that most State laws require public or

private agencies involved in child placements to

resort to remedial measures and so on but that

these services are rarely provided. This

subsection imposes a Federal requirement in that

regard with respect to Indian children and

P-App. C-11

Cwm AUN WN COW WH AU BwWDN

NWN N WY

Ut wn =

| families. It says that -- well, it's saying that

there has to be these remedial measures. Doesn't

say what level of proof they have to have.

Again, I want to go through these

cases. Michael G, which is a Court of Appeal

decision out of California, 74 Cal. Reptr. 2d

642, very lengthy analysis beginning at page 648

and continuing through 649. I would reference

that I found that to be very, very persuasive

just in terms of the analysis. In Re Cari B,

Court of Appeal, 763 N.E.2d 917, very brief

analysis on page 923.

So I note, those are the cases that

I'm relying on and I am going to go with the

ciear and convincing evidence and five/sixths

verdict. Okay. Before I get to this standard

jury instruction, I think that's it on the

five/sixths instruction -- I don't think anybody

else has to make a record on my nuling. If you

have something new, I will listen.

MS. JOSET: I do have something. It's

a minor thing. On the first page of these active

instruction, the paragraph that begins with the

part -- I think it's like the fourth paragraph.

THE COURT: First page?

QUESTION 2: From July 11, 2002, through today's

date, has the Bureau of Milwaukee Child Welfare made

active efforts to provide remedial services and rehabilitative

programs designed to assist Debra [Jj in regaining custody

of Branden i?

QUESTION 3: Have the efforts referred to in

Question 2 proven unsuccessful?

QUESTION 4: Is it likely that Branden Pe] will

suffer serious physical or emotional harm if, upon conclusion

of this trial, he is removed from his current foster placement,

placed with Debra and continued in her custody?

The term “likely” means that there is a real and

significant probability of serious physical or emotional harm,

rather than an imaginary one.

The burden of proof as to Questions 1, 2, and 3 of the

Special Verdict is upon the Petitioner to convince you to a

reasonable certainty by evidence that is clear, satisfactory

and convincing that the question should be answered "yes." If

you are not so satisfied, you must answer that particular

question "no."

Clear, satisfactory, and convincing evidence is

evidence which when weighed against that opposed to it

clearly has more convincing power. It is evidence which

satisfies and convinces you that “yes” should be the answer

because of its greater weight and clear convincing power. If

you have to guess what the answer should be after discussing

all evidence which relates to a particular question, then the

party. having the burden of proof as to that question has not

met the required burden. Your answer to Questions |, 2, and

3 of the Special Verdict must be agreed upon by at least 10 of

the 12 jurors. Jurors have a duty to consult with one another

and to deliberate for the purpose of reaching agreement. If

you can do so consistently with your duty as a juror, at least

the same ten jurors should concur in all the answers made. |

ask you to be unanimous if you can. At the foot of the

verdict, you will find a place provided where dissenting

jurors, if there be any, will sign their names

P-App. D-1

The burden of proof as to Question 4 of the Special

Verdict is upon the Petitioner to convince you beyond a

reasonable doubt that the answer to that question should be

"yes." Before you can answer “yes” to Question 4 of the

Special Verdict, the evidence must satisfy you beyond a

reasonable doubt that the facts necessary to support the

elements in that question have been proven.

The term "reasonable doubt" means a doubt based

upon reason and common sense. It is a doubt for which a

reason can be given, arising from a fair and rational

consideration of the evidence or lack of evidence. It means

such doubt as would cause a person of ordinary prudence to

pause or hesitate when called upon to act in the most

important affairs of life.

A reasonable doubt is not a doubt which is based on

mere guesswork or speculation. A doubt which arises merely

from sympathy or fear to return an answer of “yes” to the

question in the Special Verdict is not a reasonable doubt.

A reasonable doubt is not a doubt such as may be used to

escape the responsibility of a decision. While it is your duty

to give Debra [J the benefit of every reasonable doubt, you

are not to search for doubt. You are to search for the truth.

STATE OF WISCONSIN CIRCUIT COURT

MILWAUKEE COUNTY

CHILDREN'S DIVISION

In the Interest of

Branden Case No. 02TP000437

Child Under the Age of Eighteen

SPECIAL VERDICT

QUESTION 1: Has Debra

responsibility for Branden

failed to assume parental

YES

(Yes or No) Dissenting Juror

s/ Sarah Grubb

Presiding Juror Dissenting Juror

If you answered Question | "Yes," answer Question 2.

QUESTION 2: From July 11, 2002, through today’s date, has

the Bureau of Milwaukee Child Welfare made active efforts

to provide remedial services and rehabilitative programs

designed to assist Debra [J in regaining custody of Branden

YES

(Yes or No) Dissenting Juror

s/ Sarah Grubb

Presiding Juror Dissenting Juror

P-App. E-1

If you answered Question 2 "Yes," answer Question 3.

QUESTION 3: Have the efforts referred to in Question 2

proven unsuccessful?

YES

(Yes or No) Dissenting Juror

s/ Sarah Grubb

Presiding Juror Dissenting Juror

If you answered Question 3 “Yes,” answer Question 4.

QUESTION 4: Is it likely that Branden [jj will suffer

serious physical or emotional harm if, upon conclusion of

this trial, he is removed from his current foster placement,

placed with Debra [J and continued in her custody?

YES

(Yes or No)

s/ Sarah Grubb

Presiding Juror

P-App. E-2

STATE OF WISCONSIN

COURT OF APPEALS

DISTRICT I

—— ae

IN THE INTEREST OF BRANDEN F.,

CHILD UNDER THE AGE OF EIGHTEEN

STATE OF WISCONSIN,

Petitioner-Respondent,

v. Appeal No. 04-2560

DEBRA F.,

Respondent-Appeliant.

ON APPEAL FROM THE CIRCUIT COURT FOR

MILWAUKEE COUNTY

THE HONORABLE JOSEPH R. WALL PRESIDING

CASE NO. 02-TP-000437

BRIEF OF RESPONDENT-APPELLANT DEBRA F.

MICHAEL J. GONRING

State Bar No. 1003926

NATALIE C. GIUGNO

State Bar No. 1050356

JOSEPH O. WILSON

State Bar No. 1052468

QUARLES & BRADY LLP

411 East Wisconsin Avenue

Milwaukee WI 53202

414.277.5000

P-App. F-1

trial court initially stated that the “active efforts” requirement

mandated proof beyond a reasonable doubt.'*’ However, the

court later course and found that D.S.P. did not

Although not binding, the language in D.S.P. should

have been viewed as persuasive by the trial court, especially

because it is the only published Wisconsin Supreme Court

decision that addresses the burden requirements under

ICWA.

Next, the trial court cited Santosky to support its

adoption of the clear and convincing evidence standard."”

see. Seatat, clon 0 THR com, wen as IOWA

In. that case, the Court held that due process required

cuilanmatalahatentiabdemuiaainan

" R OS at 200.

* RB 54 at 30.1; R.95 at 206.

” R S4 at 6-7; R.9S at 208.

Santosky, 455 U.S. 745, 102 S. Ct. 1388

P-App. F-2

evidence in TPR proceedings, because (1) the private

interests affected by the proceedings are “commanding”; (2)

the risk of error created by the State’s chosen procedure is

“substantial”; and (3) the countervailing government interest

in supporting the use of the challenged procedure is

“comparatively slight.”

The Court compared the fact-finding stage in a TPR

proceeding to that of a criminal trial, because the subjective

standards created a high risk of error.''? Finally, the Court

recognized that TPR proceedings “are often vulnerable to

judgments based on cultural bias.”''’

Santosky commands that all TPR proceedings require

a burden of proof of at least clear and convincing evidence.

But ICWA creates additional protections for the parent and

* id. at 758, 102 S. Ct. at 1397.

'"? Id. at 762, 102 S. Ct. at 1399.

'"? Id. at 763, 102 S. Ct. at 1400.

P-App. F-3

requires a higher burden of proof in TPR proceedings.''* For

instance, § 1912(d) requires that the State make active efforts

to prevent the breakup of the Indian family, and § 1912(f)

requires the State to prove beyond a reasonable doubt, usiug

expert testimony, that the child will likely suffer serious

emotional or physical harm if returned to the parent’s

custody.''* Therefore, where ambiguous, ICWA should be

interpreted to provide a higher rather than lower burden of

proof requirement that would provide greater protection for

the parent.

Moreover, ICWA was created as a response to the

extreme cultural bias against American Indians."'® A;

explicitly recognized by ICWA,'"’ there is an even greater

4 See 25 U.S.C. § 1912(d), (f)

"9 Id. at § 1912(d), (f).

"Id. at § 1901(4)-(5).

’ Id. at § 1901(5).

P-App. F-4

risk for cultural bias in ICWA proceedings against Indian

parents than in normal TPR proceedings, further supporting

the need for a higher burden of proof.

Other jurisdictions are split over whether the State

must prove “active efforts” by clear and convincing evidence

or proof beyond a reasonable doubt.'™ The trial court cited

several decisions by courts adopting the clear and convincing

evidence standard, but it ignored the better reasoned

decisions that adopted the higher standard.” Contrary to the

State's argument and the trial court’s finding, those decisions

provided compelling reasons why “active efforts” must be

proved beyond a reasonable doubt.

'™ R.54 at 3-7; See In the Matter of G.S. & S.S., 2002 MT 245, 4 31, 312

Mont. 108, 119, 59 P_3d 1063, 1071 (lists cases reflecting split among

courts).

'* R 54 at 3-7; R.95 at 208-09.

P-App. F-5

STATE OF WISCONSIN

COURT OF APPEALS OF WISCONSIN

DISTRICT I

In re the Termination of Parental Rights to Branden F.,

A person Under The Age Of Eighteen:

STATE OF WISCONSIN,

Petitioner-Respondent,

v. Appeal No. 04-2560

DEBRA F.,

Respondent- Appellant.

ON APPEAL FROM THE CIRCUIT COURT FOR

MILWAUKEE COUNTY

THE HONORABLE JOSEPH R. WALL PRESIDING

CASE NO. 02-TP-000437

REPLY BRIEF OF RESPONDENT-APPELLANT

DEBRA F.

MICHAEL J. GONRING

State Bar No. 1003926

NATALIE C. GIUGNO

State Bar No. 1050356

JOSEPH O. WILSON

State Bar No. 1052468

QUARLES & BRADY LLP

411 East Wisconsin Avenue

Milwaukee WI 53202

414.277.5000

P-App. G-!

sever completely and irrevocably the rights of parents in their

natural child, ee eee

allegations by at /east clear and convincing evidence.”

When applied correctly, ICWA provides additional

protections to parents like Debra. Here, the trial court

stripped § 1912(d) of its protections. Contrary to the State's

incredible assertion,“* Debra's Due Process protection was

certainly not enhanced when the trial court submitted §

1912(d) to the jury with a lesser burden of proof.

Even under the lesser burden, the State failed to prove

it had made active efforts. The State emphasizes the

shortened time frame in which it was required to provide

active efforts.“” But the time frame is irrelevant. The State

never provided active efforts within the meaning

contemplated by IOWA and the BIA Guidelines.

In fact, neither the State nor GAL even attempt to

show that the Bureau complied with the instructions given in

the BIA Guidelines: (1) “Indian family” means more than the

*” Santosky y. Kramer, 455 U.S. 745, 747, 747-48, 102 S. Ct. 1388,

1391-92 (1982).

“* State’s Br. at 38-39

” State's Br. at 30-31

P-App. G-2

STATE OF WISCONSIN

SUPREME COURT

In re the Termination of Parental Rights to Branden F.,

A person Under The Age Of Eighteen:

STATE OF WISCONSIN,

Petitioner-Respondent,

Vv.

DEBRA F.,

Respondent-Appellant-Petitioner.

Appeal from a final Judgment of the Court of Appeals,

District I, of the State of Wisconsin

Court of Appeals Case No. 04-CV-2560

District Court Case No. 02-TP-000437

PETITION FOR REVIEW

MICHAEL J. GONRING

State Bar No. 1003926

JOSEPH O. WILSON

State Bar No. 1052468

NATALIE C. GIUGNO

State Bar No. 1050356

QUARLES & BRADY LLP

411 East Wisconsin Avenue

Milwaukee WI 53202

414.277.5000

Attorney for Respondent-

Appellant-Petitioner

P-App. H-1!

burden of p-oof required to prove “active efforts” depends on

evidence. Yet Santosky was not a TPR case where the ICWA

applied. Rather, the United States Supreme Court held that

due process requires states to support their allegations under

state law in TPR cases by at least clear and convincing

evidence.” It was not a TPR case that invoked the ICWA.

The ICWA was enacted to provide additional

protections for the parent, and it requires a higher burden of

proof in TPR proceedings." The ICWA was created as a

response to the extreme cultural bias against

Indians.” As explicitly recognized by the ICWA,” there is

an even greater risk for cultural bias in TPR proceedings

against Indian parents than against non-Indian parents,

further supporting the need for a higher burden of proof.

This Court now has the opportunity to squarely

address this issue and clarify the law on this point. The trial

courts in Shannon R. and D.S.P. required the State to prove

” In the Matter of M.S.S., 465 N.W_2d 412, 418 (Minn. Ct. App. 1991);

In the Interest of S.R., 323 N.W.2d 885, 887 (S.D. 1992), In re Morgan,

140 Mich. App. 594, 604, 364 N.W.2d 754, 758 (1985); In the Matter of

Kreft, 148 Mich. App. 682, 693, 384 N.W.2d 843, 84° "1986), In re

L.N.W., 457 N.W.2d 17, 19 (lowa Ct. App. 1990); In the Matter of G.S.

& S.S., 2002 MT 245.4 33, 312 Mont. 108, 120, 59 P.3d 1063, 1071.

® Santosky v. Kramer, 455 U.S. 745, 769, 102 S. Ct. 1388, 1403 (1982).

" 25 U.S.C. § 1912 (f.

™ Id. at § 1901 (4}-(5).

* Id at § 190 (5)

P-App. H-2

the “active efforts” requirement beyond a reasonable doubt.

The trial court in this case required proof beyond a

reasonable doubt. This Court should accept review to

harmonize the law on this crucial issue.

Vv. THE "GOOD CAUSE" REQUIREMENT OF §

1911(>) SHOULD BE STRICTLY CONSTRUED TO

GIVE EFFECT TO CONGRESS’ PREFERENCE THAT

PROCEEDINGS INVOLVING INDIAN CHILDREN BE

HEARD BY TRIBAL COURTS.

Section 1911(b) requires the transfer of proceedings

involving Indian children to Tribal courts absent “good

P-App. H-3

67584 Federal Register / Vol. 44, No. 228 / Monday,

November 26, 1979

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

Guidelines for State Courts; Indian Child Custody

Proceedings

This notice is published in exercise of authority

. delegated by the Secretary of the Interior to the Assistant

Secretary—Indiana Affairs by 209 DM 8.

There was published in the Federal Register, Vol. 44,

No. 79 / Monday, April 23, 1979 a notice entitled

Recommended Guidelines for State Courts—Indian Child

Custody Proceedings. This notice pertained directly to

implementation of the Indian Child Welfare Act of 1978,

Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 1901 ef seg A

subsequent Federal Register notice which invited public

comment concerning the above was published on June 5,

1979. As a result of comments received, the recommended

guidelines were revised and are provided below in final form.

Introduction

Although the rulemaking procedures of the

Administrative Procedures Act have been followed in

developing these guidelines, they are not published as

regviations because they are not intended to have binding

legislative effect. Many of these guidelines represent the

interpretation of the Interior Department of certain provisions

of the Act. Other guidelines provide procedures which, if

followed, will help assure that rights guaranteed by the Act

are protected when state courts decide Indian child custody

matters. To the extent that the Department's interpretations

of the Act are correct, contrary interpretations by the courts

P-App. I-1

would be violations of the Act. If procedures different

those recommended in these guidelines are adopted by a

state, their adequacy to protect rights guaranteed by the Act

will have to be judged on their own merits.

Francis, 432 U.S. 416, 424-425 (1977).

In other words, when the Department writes rules

needed to carry out responsibilities Congress has explicitly

NS Oe ee ee A

violation of those rules is a violation of the law

however, the Department writes rules or guidelines advising

some other agency how it should carry out responsibilities

explicitly assigned to it by Congress, those rules or

caddies wo aa, ty femiediin, Unie, Conte aa tan

what this Department has to say into account in such

instances, but they are free to act contrary to what the

Department has said if they are convinced that the

Department's guidelines are not required by the statute itself,

July 31, 1979 at 44 FR 45092.

P-App. 1-2

NE EEO—IEIEEEEEE—E—E———

regulations with binding legislative effect with respect to all

tribal courts under the Act, however, is not necessary to carry

out the Act. State and tribal courts are fuliy capable of

carrying out the responsibilities imposed on them by

Congress without being under the direct supervision of this

Department.

Nothing in the legislative history indicates that

Congress intended this Department to exercise supervisory

control over state or tribal courts or to legislate for them with

respect to Indian child custody matters. For Congress to

assign to an administrative agency such supervisory control

over courts would be an extraordinary step.

Nothing in the language or legislative history of 25

U.S.C. 1952 compels the conclusion that Congress intended

to vest this Department with such extraordinary power. Both

purpose of that section was simply to assure that the

P-App. I-3

Department moved promptly to promulgate regulations to

carry out the responsibilities Congress had assigned it under

the Act. Assignment of supervisory authority over the courts

to an administrative agency is a measure so at odds with

concepts of both federalism and separation of powers that it

should not be imputed to Congress in the absence of an

express declaration of Congressional intent to that effect.

Some commenters also recommended that the

guidelines be published as regulations and that the decision

of whether the law permits such regulations to be binding be

left to the court. That approach has not been adopted because

the Department has an obligation not to assert authority that

it concludes it does not have.

Each section of the revised guidelines is accompanied

by commentary explaining why the Department believes

states should adopt that section and to provide some guidance

where the guidelines themselves may need to be interpreted

in the light of specific circumstances.

The original guidelines used the word “should”

instead of “shall” in most provisions. The term “should” was

used to communicate the fact that the guidelines were the

Department's interpretations of the Act and were not

intended to have binding legislative effect. Many

commenters, however, interpreted the use of “should” as an

atiempt by this Department to make statutory requirements

themselves optional. That was not the intent. If a state

adopts those guidelines, they should be stated in mandatory

terms. For that reason the word “shall” has replaced

“should” in the revised guidelines. The status of these

guidelines as interpretive rather than legislative in nature is

adequately set out in the introduction.

In some instances a state may wish to establish rules

that provide even greater protection for rights guaranteed by

the Act than those suggested by these guidelines. These

guidelines are not intended to discourage such action. Care

P-App. I-4

should be taken, however, that the provision of additional

protections to some parties to a child custody proceeding

does not deprive other parties of rights guaranteed to them by

the Act.

In some irstances the guidelines do little more than

restate the statutory language. This is done in order to make

the guidelines more complete so that they can be followed

without the need to refer to the statute in every instance.

Omission of any statutory language, of course, does not in

any way affect the applicability of the statute.

A number of commenters recommended that special

definitions of residence and domicile be included in the

guidelines. Such definitions were not included because these

terms are well defined under existing state law. There is no

indication that these state law definitions tend to undermine

in any way the purposes of the Act. Recommending special

definitions tend to undermine in any way the purposes of the

Act. Recommending special definitions for the purpose of

this Act alone would simply provide unnecessary

complications in the law.

A number of commenters recommended that the

guidelines include recommendations for _ tribal-state

agreements under 25 U.S.C. 1919. A number of other

commenters, however, criticized the one provision in the

original guidelines addressing (that subject as tending to

impose on such agreements restrictions that Congress did not

intend should be imposed. Because of the wide variation in

the situations and attitudes of states and tribes, it is difficult

to deal with that issue in the context of guidelines. The

Department is currently developing materials to aid states

and tribes with such agreements. The Department hopes to

have those materials available later this year. For these

reasons, the provision in the original guidelines concerning

tnbal-state agree. .ents has been deleted from the guidelines.

P-App. I-5

assistance in that area aiso in the future. Providing guidance

to state courts was given a higher priority because the Act

imposes many more procedures on state courts than it does

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other. Rt is anticipated thet more detailed guidance ca

questions of financia) responsibility will be provided as a

result of those consultations.

One commenter recommended that the Department

establish a monitoring procedure to exercise its right under

25 U.S.F. 1915(e) to review state court placement records.

HEW currently reviews state placement records on a

systematic basis as part of its responsibilities with respect to

statutes it administers. Interior Department officials are

discussing with HEW officials the establishment of a

procedure for collecting data to review compliance with the

Indian Child Welfare Act.

Inquiries concerning these recommended guidelines

may be directed to the nearest of the following regional and

field offices of the Solicitor for the Interior Department:

Office of the Regional Solicitor, Department of the

Interior, 510 L Street, Suite 408, Anchorage, Alaska 99501.

(907) 285-5301.

P-App. 1-6

Office of the Regional Solicitor, Department of the

Interior, Richard B. Russell Federal building, 75 spring St.,

SW., Suite 1328, Atlanta, Georgia 30303. (404) 221-4447.

Office of the Regional Solicitor, Department of the

Interior, c/o U.S. Fish & Wildlife Service, Suite 306, 1

Gateway Center, Newton Corner, Massachusetts 02158.

(817) 829-9258.