In re Kameron N. ( 2021 )

****************************************************************
The ‘‘officially released’’ date that appears near the
beginning of this opinion is the date the opinion was
released as a slip opinion. The operative date for the
beginning of all time periods for filing postopinion
motions and petitions for certification is the ‘‘officially
released’’ date appearing in the opinion.
This opinion is subject to revisions and editorial
changes, not of a substantive nature, and corrections
of a technical nature prior to publication in the
Connecticut Law Journal.
****************************************************************
IN RE KAMERON N.*
(AC 44079)
Lavine, Moll and Cradle, Js.**
Syllabus
The respondent father appealed to this court from the judgment of the trial
court terminating his parental rights with respect to his minor child, K,
who had previously been adjudicated neglected. The father was a mem-
ber of the Rosebud Sioux Tribe, and K was eligible for enrollment in
the tribe on that basis. The petitioner, the Commissioner of Children
and Families, and the Department of Children and Families, sent multiple
letters to the tribe pursuant to the Indian Child Welfare Act of 1978 (25
U.S.C. § 1901 et seq.) regarding K’s involvement with the department.
These letters included, inter alia, one sent by registered mail, return
receipt requested, informing the tribe that a trial on the termination of
parental rights was scheduled, with the dates, times and location of the
trial. A social worker representing the tribe signed for that letter. The
tribe sent multiple letters to the petitioner indicating, inter alia, that K
qualified for enrollment, and it exercised its statutory (25 U.S.C. § 1911(c)) right to intervene in the termination trial, but it did not appear. On
appeal, the father claimed that the tribe had not received proper notice
as required by federal law (25 U.S.C. § 1912 (a)) that the nature of
the termination proceedings was involuntary. Held that the trial court
properly determined that the notice provided to the tribe complied with
the requirements of 25 U.S.C. § 1912 (a); the plain and unambiguous
language of the statute requires that notice be given in any involuntary
proceeding but does not require the petitioner explicitly to state that a
termination proceeding is involuntary, the fact that the petitioner had
sent notice to the tribe at all was indicative that the proceeding was
involuntary, as tribes are not entitled by statute to intervene in voluntary
proceedings, and the letter the petitioner sent to the tribe identified the
proceeding as a termination of parental rights, which indicated the
involuntary nature of the proceeding.
Argued November 10, 2020—officially released February 16, 2021***
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor child, brought to the Superior
Court in the judicial district of Middlesex, Juvenile Mat-
ters at Middletown, where the Rosebud Sioux Tribe
intervened; thereafter, the matter was tried to the court,
Woods, J.; judgment terminating the respondents’
parental rights, from which the respondent father
appealed to this court. Affirmed.
Joshua Michtom, assistant public defender, for the
appellant (respondent father).
Carolyn A. Signorelli, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, Clare Kindall, solicitor general, and Evan
O’Roark, assistant attorney general, for the appellee
(petitioner).
Opinion
CRADLE, J. The sole issue in this appeal from the
judgment of the trial court terminating the parental
rights of the respondent father, David N., with respect
to his minor child, Kameron N., is whether the Rosebud
Sioux Tribe (tribe) received proper notice, pursuant to
the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.
§ 1901 et seq., of the termination of parental rights pro-
ceedings involving the child, who is enrollable as a
member of the tribe. We reject the claim of the respon-
dent that the tribe did not receive adequate notice of
the termination proceedings and, accordingly, affirm
the judgment of the trial court.1
The following procedural history, set forth by the
trial court, is relevant to the respondent’s claim. The
child was born to the respondent father and Brooke C.
(mother) on December 19, 2009. The respondent and his
mother, the child’s paternal grandmother, are natives
of the tribe. The Department of Children and Families
(department) has been involved with this family since
2011, resulting in three substantiated allegations of
neglect arising from issues of ongoing substance abuse,
intimate partner violence, and inadequate supervision
of the child. ‘‘On August 5, 2016, [the petitioner, the
Commissioner of Children and Families] filed a neglect
petition on behalf of [the child]. On November 10, 2016,
[the child] was adjudicated neglected and placed under
protective supervision. While [the child] was under pro-
tective supervision and under [his] mother’s care, [the
mother] continued to struggle with maintaining sobri-
ety, which impacted her ability to properly parent [the
child]. On May 19, 2017, [the petitioner] filed an [order
for temporary custody] on behalf of [the child], which
was sustained on May 26, 2017. On May 19, 2017, [the
child] was placed in a nonrelative foster home where
he continues to reside at this time. On June 15, 2017,
[the child] was committed to [the care and custody of
the petitioner]. On April 12, 2018, a permanency plan
for [termination of parental rights] and adoption was
approved by the court. A [termination] trial on this
matter commenced on April 22, 2019, with subsequent
trial dates of April 25, May 1, May 2, May 21, and June
17 of 2019.’’
On January 31, 2020, the trial court issued a memoran-
dum of decision terminating the parental rights of the
respondent and the child’s mother. The court found
that the petitioner had made the requisite efforts under
ICWA to prevent the breakup of the family by providing
remedial services and rehabilitative programs to both
parents, but those efforts were unsuccessful. The court
determined that the child had previously been adjudi-
cated neglected and that neither parent had achieved
a sufficient degree of personal rehabilitation within the
meaning of General Statutes § 17a-112 (j) (3) (B) (i). The
court further concluded that terminating their parental
rights was in the child’s best interest. This appeal
followed.
For the first time on appeal, the respondent chal-
lenges the adequacy of the notice of the termination
proceedings afforded to the tribe pursuant to ICWA.2
The following additional facts, which are undisputed,
are relevant to the respondent’s claim. At trial, the peti-
tioner introduced into evidence the department’s corre-
spondence with the tribe pertaining to the child protec-
tion proceedings involving the child. The record reflects
that, by way of a letter dated July 14, 2017, the depart-
ment notified the tribe that a neglect petition had been
filed on behalf of the child on August 9, 2016. On May
22, 2018, the department sent a letter to the tribe
informing it that a permanency plan recommending the
termination of parental rights and adoption, which was
attached to the letter, had been filed on behalf of the
child on February 22, 2018. On June 21, 2018, the depart-
ment sent another letter to the tribe, referencing the
prior neglect petition and a previous order for tempo-
rary custody and neglect adjudication, and informing
the tribe that the permanency plan recommending ter-
mination had been granted by the court on April 12,
2018. All three of these letters were sent pursuant to
ICWA, indicated that the department had information
to believe that the child might be a member of the tribe,
and advised the tribe of its right to intervene in the
proceedings. The respondent does not claim that the
tribe did not receive these notices.
On June 28, 2018, the tribe responded to the depart-
ment, indicating that the child qualified for enrollment
in the tribe on the basis of the respondent’s enrollment.
On July 6, 2018, the tribe sent another letter to the
department indicating that it had determined that the
child met the definition of ‘‘Indian Child’’ pursuant to
25 U.S.C. § 1903 (4). In that letter, the tribe stated:
‘‘If this is an involuntary child custody proceeding, we
intend to intervene in the above named matter as a
legal party. Send a copy of petition with names and
addresses of all parties.’’
On September 19, 2018, the department sent a letter
to the tribe notifying it of a ‘‘court date scheduled on
behalf of [the child] on [November 13, 2018] at 9:30
a.m.’’ The letter contained the address of the court, but
did not indicate the purpose of the ‘‘court date.’’
On January 17, 2019,3 the department sent a letter to
the tribe informing it of a hearing date of April 9, 2019,
to address pretrial motions, and notifying the tribe that
the termination of parental rights trial was scheduled
for April 22, April 25, and April 29, 2019. This letter
included the times of the trial on each date and the
address of the court. It was sent by registered mail with
return receipt requested and was signed for by Shirley
Bad Wound, a social worker representing the tribe.
On January 28, 2019, the tribe filed with the trial
court, inter alia, a ‘‘Notice of Intervention by the Rose-
bud Sioux Tribe’’ stating that it was ‘‘invok[ing] its rights
to intervene in this child custody proceeding pursuant
to 25 U.S.C. § 1911 (c) . . . .’’
On March 27, 2019, David Mantell, a clinical and
forensic psychologist who was asked by the department
to review this matter, called Bad Wound. Bad Wound
acknowledged receipt of the documents sent by the
department but told Mantell that she knew very little
about the proceedings involving the child. After Mantell
summarized the proceedings for Bad Wound, she indi-
cated that the tribe’s plan at that time was to enroll
him as a tribal member. Despite exercising its right to
intervene, the tribe took no further action and did not
appear at the termination trial.
The trial court found that the respondent was a mem-
ber of the tribe, and, accordingly applied the substantive
law of ICWA in weighing the evidence presented at trial.
The trial court also found that ‘‘notice of the court
hearing dates were sent to the Rosebud Sioux tribe by
the [department] . . . [but] [n]o representative of the
tribe ever appeared in court.’’ The respondent does
not challenge the court’s adjudicative or dispositional
findings underlying the termination judgment. On
appeal, the respondent claims only that notice to the
tribe of the termination proceedings was deficient in
that it did not indicate that the proceedings were invol-
untary. On that basis, the respondent argues that the
judgment of termination should be reversed because
the tribe did not receive proper notice of the termination
proceedings under ICWA.4 We are not persuaded.
We begin by noting that ‘‘Congress enacted ICWA in
1978 to address the [f]ederal, [s]tate, and private agency
policies and practices that resulted in the wholesale
separation of Indian children from their families. . . .
Congress found that an alarmingly high percentage of
Indian families are broken up by the removal, often
unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high
percentage of such children are placed in non-Indian
foster and adoptive homes and institutions . . . .
Although the crisis flowed from multiple causes, Con-
gress found that non-Tribal public and private agencies
had played a significant role, and that [s]tate agencies
and courts had often failed to recognize the essential
Tribal relations of Indian people and the cultural and
social standards prevailing in Indian communities and
families. . . . To address this failure, ICWA establishes
minimum [f]ederal standards for the removal of Indian
children from their families and the placement of these
children in foster or adoptive homes, and confirms
Tribal jurisdiction over [child custody] proceedings
involving Indian children.’’ (Footnotes omitted; internal
quotation marks omitted.) United States Department of
the Interior, Office of the Assistant Secretary—Indian
Affairs, Bureau of Indian Affairs, ‘‘Guidelines for Imple-
menting the Indian Child Welfare Act,’’ (2016), p. 5,
available at bia.gov/sites/bia.gov/files/assets/bia/ois/
pdf/idc2-056831.pdf (last visited February 10, 2021).
With the foregoing principles in mind, we turn to the
respondent’s claim on appeal. The respondent contends
that the notice afforded to the tribe of the termination
proceedings involving the child did not comply with
ICWA. To resolve the respondent’s claim, we must apply
the principles of statutory interpretation to the notice
requirements of ICWA, set forth in 25 U.S.C. § 1912 (a).
The interpretation of ICWA, like the interpretation of
any statute, is a question of law that we review de novo.
See In re N.B., 199 P.3d 16, 18 (Colo. App. 2007). ‘‘Our
interpretation of federal and state statutes is guided by
the plain meaning rule. See, e.g., Cambodian Buddhist
Society of Connecticut, Inc. v. Planning & Zoning
Commission, 285 Conn. 381, 400–401, 941 A.2d 868(2008) (‘With respect to the construction and applica-
tion of federal statutes, principles of comity and consis-
tency require us to follow the plain meaning rule for
the interpretation of federal statutes because that is the
rule of construction utilized by the United States Court
of Appeals for the Second Circuit. . . . If the meaning
of the text is not plain, however, we must look to the
statute as a whole and construct an interpretation that
comports with its primary purpose and does not lead
to anomalous or unreasonable results.’ . . .) . . . .’’
State v. Peters, 287 Conn. 82, 88, 946 A.2d 1231 (2008).
Section 1912 (a) of ICWA provides in relevant part:
‘‘In any involuntary proceeding in a State court, where
the court knows or has reason to know that an Indian
child is involved, the party seeking the foster care place-
ment of, or termination of parental rights to, an Indian
child shall notify the parent or Indian custodian and
the Indian child’s tribe, by registered mail with return
receipt requested, of the pending proceedings and of
their right of intervention. . . .’’ 25 U.S.C. § 1912 (a)
(2018).
The respondent challenges the adequacy of the notice
afforded to the tribe solely on the ground that the tribe
was not informed of the involuntary nature of the termi-
nation proceedings.5 The plain and unambiguous lan-
guage of 25 U.S.C. § 1912 (a), however, does not require
the department explicitly to tell the tribe that the pro-
ceeding was involuntary. It requires that notice be given
‘‘in any involuntary proceeding,’’ and it sets forth the
information that must be contained in that notice, such
as the identities of the parties to the proceeding and
the tribe’s right to intervene. It does not require notifica-
tion of the voluntary or involuntary nature of the pro-
ceedings. Moreover, because the tribe is not entitled
to intervene in voluntary proceedings; Catholic Social
Services, Inc. v. C.A.A., 783 P.2d 1159, 1160 (Alaska
1989) (under ICWA, child’s tribe is not entitled to notice
of proceeding for voluntary termination of parental
rights), cert. denied, 495 U.S. 948, 110 S. Ct. 2208, 109
L.Ed.2d 534 (1990); the fact that notice was sent to the
tribe was indicative of the involuntary nature of the
termination proceedings in this case. The January 17,
2019 letter sent by the department to the tribe, which
provided notice of the three scheduled trial dates in
what was identified as a termination of parental rights
proceeding also was indicative of the involuntary nature
of those proceedings. Because the plain and unambigu-
ous language of 25 U.S.C. § 1912 (a) does not require
the notice sent in an involuntary proceeding explicitly
to indicate the involuntary nature of the proceedings,
we cannot conclude, as the respondent contends, that
the notice afforded to the tribe failed to comply with
ICWA on that basis.6
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
*** February 16, 2021, the date this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The parental rights of the child’s mother also were terminated. She has
challenged the trial court’s judgment in a separate appeal. See In re Kameron
N., 202 Conn. App. , A.3d (2021). Therefore, any reference to
the respondent herein is to the father.
2
It is well settled that such a claim may properly be raised for the first
time on appeal. See In re Marinna J., 90 Cal. App. 4th 731, 739, 109 Cal.
Rptr. 2d 267 (2001). Additionally, ICWA specifically confers standing on a
parent to petition a court to invalidate a termination proceeding upon show-
ing that notice requirements have not been satisfied. See 25 U.S.C. § 1914(2018).
3
Although this letter is dated January 17, 2018, the parties stipulate that
it was actually sent on January 17, 2019.
4
The attorney for the child filed a letter with this court, pursuant to
Practice Book §§ 67-13 and 79a-6 (c), adopting the brief of the petitioner.
5
We note that ‘‘[t]he requisite notice to the tribe serves a twofold purpose:
(1) it enables the tribe to investigate and determine whether the minor is
an Indian child; and (2) it advises the tribe of the pending proceedings and
its right to intervene or assume tribal jurisdiction.’’ (Internal quotation marks
omitted.) In re N.R., 242 W. Va. 581, 590, 836 S.E.2d 799 (2019), cert. denied
sub nom. Rios v. West Virginia Dept. of Health & Human Resources,
U.S. , 140 S. Ct. 1550, 206 L. Ed. 2d 385 (2020).
6
The petitioner argues, in the alternative, that the notice sent to the tribe
substantially complied with ICWA, and that any alleged deficiency with it
was harmless. Because we conclude that the notice complied with the
requirements set forth by the plain and unambiguous language of ICWA,
we need not address the petitioner’s alternative arguments. It is worth
noting, however, that it is undisputed that the tribe had actual notice of the
termination proceedings but took no action in them beyond intervening.