Teresa Dembicer appeals a judgment terminating her parental rights to her 4-year-old son Emery
On April 15, 1986, the State of Washington through the Department of Social and Health Services, filed a petition for termination of Teresa's parental rights. This petition followed an order of dependency entered 10 months earlier. The trial court held a fact finding hearing pursuant to RCW 13.34.180 which revealed that Teresa suffered from an emotional disorder that would interfere with her ability to perform her parental duties. The trial court held that it would be in the best interest of the child to terminate the parent-child relationship.
During this hearing, Dembicer's counsel raised the issue that the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq., should apply to the proceedings, since Dembicer alleged that she is one-quarter Apache Indian. An affidavit was filed by a Department caseworker, which indicated that Emery was not qualified to be enrolled in a tribe. The court ruled that the act did not apply to the proceedings. This court granted accelerated review of Dembicer's appeal.
INDIAN CHILD WELFARE ACT
Dembicer first argues that the Indian Child Welfare Act of 1978, 25 U.S.C. § 1901 et seq., should apply to these termination proceedings.
The Indian Child Welfare Act of 1978 applies to termination proceedings where a child is defined as an Indian child. An Indian child is defined as "any unmarried person
Under the provisions of the Indian Child Welfare Act of 1978:
25 U.S.C. § 1912(a). Under this section, no further proceedings shall be held until at least 10 days after the receipt of the notice by the tribe or the Secretary of the Interior.
The issue then becomes when and under what circumstances must notice of the pending proceedings be given to the tribe and/or Bureau of Indian Affairs. Although case law is spotty on what constitutes reasonable grounds under § 1912 to believe an Indian child is involved in the proceedings, the Bureau of Indian Affairs has published "Guidelines for State Courts: Indian Child Custody Proceedings" which clarify this point. 44 Fed. Reg. 67,584-95. These guidelines set forth circumstances that trigger an
44 Fed. Reg. 67,586.
Rather than reversing the proceedings for failure to comply with the notice requirements of the Indian Child Welfare Act of 1978, as was done in In re H.D., supra, we remanded this matter to the trial court to make further findings regarding the Indian status of Emery. On remand, the State notified all appropriate Apache tribes and the Bureau of Indian Affairs. The trial court found that after the required notification had been made, no tribe, individual, or agency of the federal government sought to intervene in these proceedings, and that the child is not enrolled or enrollable in an Indian tribe. As a result, the trial court concluded that Emery Titus Colnar is not an Indian child as defined by 25 U.S.C. § 1903(4). These findings and conclusions are unchallenged. We are satisfied that Emery Titus Colnar is not an Indian child and thus the Indian Child Welfare Act of 1978 does not apply to these proceedings.
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ALEXANDER, A.C.J., and WORSWICK, J., concur.
Review denied by Supreme Court November 1, 1988.
"(9) In any proceeding brought under this chapter where the court knows or has reason to know that the child involved is a member of an Indian tribe, notice of the pendency of the proceeding shall also be sent by registered mail, return receipt requested, to the child's tribe. If the identity or location of the tribe cannot be determined, such notice shall be transmitted to the secretary of the interior of the United States."