The Supreme Court of Virginia reversed and remanded the trial court’s denial of transfer to a tribal court under the Indian Child Welfare Act of 1978 (the “ICWA”), 25 U.S.C. § 1911(b). The Supreme Court also vacated the trial court’s order terminating parental rights of the child and remanded the case, holding that there is a presumption of tribal jurisdiction that is in and of itself in the best interests of Indian children pursuant to Congress’ intent in enacting the ICWA and that under Holyfield, it is in the best interests of Indian children, particularly in foster care and parental right proceedings to be under the jurisdiction of a tribal court, not state court. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989.). In this case, DDSS moved to terminate parental rights of a father and Indian mother. The tribe and biological parents moved to transfer the case to tribal court, but the circuit court found that there was not good cause to transfer and terminated parental rights. The trial court held that there was not good cause to transfer because the case was at an advanced stage, transfer would cause undue hardship to the parties, and removing the child from the foster home would be extremely harmful to the child using a best interest of the child standard. The Supreme Court held that the decision to transfer to tribal court should be determined under the more limited test of “immediate serious emotional or physical harm to the child” resulting from the transfer, rather than using the “best interests of the child” standard, and as such remanded back to the trial court for further review and vacated the termination order.
Cite: No. 131584, 2014 Va. LEXIS 160; 2014 WL 5510487 (Va. Oct. 31, 2014)
Link to Full Opinion
Support Us