In re Interest of Walter W.

SUMMARY: “The stated purposes of the ICWA are best served by allowing parents to raise, in their direct appeal from a termination of parental rights, the issue of the State’s failure to notify the child’s Indian tribe of the termination of parental rights proceedings as required by § 43-1505(1).”  The State’s failure to fulfill the statutory notice requirements for the termination proceeding resulted in a vacation of the termination order.

After the mother’s parental rights were terminated, she filed a timely appeal contending that the “juvenile court erred in terminating her parental rights because (1) the State failed to notify an essential party to the proceedings…”  The Court of Appeals stated that “limiting standing to raise the failure to notify a tribe in many instances will not serve the stated purposes and goals of the ICWA.”  In many, if not most, cases “tribes depend upon parents to notify the State of known or potential Indian ancestry, and because Indian tribes cannot intervene in cases of which they have received no notification, logic dictates that parents may often best be situated to raise claims of inadequate notice to tribes.”  Accordingly,” [s]ince the plain language of the statute provides that ‘[n]o … termination of parental rights proceedings shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the secretary,” the termination hearing in this case was invalid, and “the order of termination must be vacated.”