Argued: November 7, 2018
Lindsay M. Allen, Esq. (orally), Fairfield and Associates,
P.A., Lyman, for appellant Shirley T.
H. Crawford Jr., Esq. (orally), Law Office of Todd H.
Crawford Jr., P.A., Raymond, for appellant David W.
T. Mills, Attorney General, and Meghan Szylvian, Asst. Atty.
Gen. (orally), Office of the Attorney General, Augusta, for
appellee Department of Health and Human Services
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Shirley T. and David W. appeal from an order of the District
Court (Portland, Powers, J.) denying their and the
Oglala Sioux Tribe's motions to transfer jurisdiction of
this child protection matter to the Oglala Sioux Tribal Court
pursuant to the Indian Child Welfare Act of 1978 (ICWA), 25
U.S.C.S. §§ 1901-1963 (LEXIS through Pub. L. No.
115-277). Shirley T. and David W. challenge the court's
determination that there is good cause within the meaning of
ICWA not to transfer the matter to the Tribal Court. We
affirm the court's denial of the motion to transfer
There are two children at issue in this consolidated child
protection matter-the son (the son) of Shirley T. (the
mother) and David W. (the father), and Shirley T.'s niece
(the niece), for whom Shirley T. has served as legal guardian
since 2011. On July 21, 2016, the Department of Health
and Human Services initiated child protection proceedings as
to both children in the District Court (Bridgton) with
allegations involving substance abuse, domestic violence,
insufficient supervision, mental health issues, the
unexplained death of another of the mothers children, verbal
and physical aggression toward the children, the fathers
prior conviction for sexual abuse of a minor, and the fathers
lack of involvement in the sons life. The court (MG Kennedy,
J.) granted preliminary protection orders that day
placing the children in Department custody.
The mother waived her right to a summary preliminary hearing
as to both children and later agreed to the entry of a
jeopardy order by the court (Powers, J.) based on
her substance abuse and mental health issues. The father also
agreed to the entry of a jeopardy order as to the son on
grounds that the father was convicted of sexual abuse of a
minor in 2006, resides on the Tribes reservation in South
Dakota, and has not had contact with the son for several
years. In the jeopardy proceedings, the court
also determined that ICWA applies to both matters because the
children are, or are eligible to become, registered members
of the Oglala Sioux Tribe of South Dakota. See 25
In December of 2017, the mother, the father, and the Tribe
(as an interested party) requested that the matter be
transferred to the jurisdiction of the Tribal Court in South
Dakota pursuant to ICWA; the Tribe also filed an order from
the Tribal Court accepting jurisdiction as to both children.
The court conducted a testimonial hearing on the motions to
transfer jurisdiction, at which both children, the
niece's counselor, the niece's foster mother, the
son's foster father (who is the father of the son's
half-siblings), the Department supervisor, the guardian ad
litem (GAL), a qualified ICWA expert, and the Tribe's
ICWA technician testified. The Department, the GAL, both
children, and the ICWA expert opposed the transfer. By order
dated April 13, 2018, the court made the following findings
of fact, which are supported by competent evidence presented
at the motion hearing.
The son was thirteen years old at the time of the hearing and
lives with the father of his three half-siblings, who are
also Indian children. The son is happy in this household and
wishes to stay. The son's biological father has never
been active in the son's life.
The niece, who was twelve years old at the time of the
hearing, was born in South Dakota but moved to Maine at a
young age. The niece lived with the mother since at least
2011, but was placed in foster care from 2015 to March of
2016 and again in July of 2016. She and the son go to the
same school and interact there; the niece also maintains a
close relationship with the rest of her cousins-the son's
half-siblings-who live in the area with their father.
The niece has been in counseling since 2015, with a short
break in 2016. She has disclosed to her counselor a history
of various forms of significant abuse, some of which occurred
when she was young and living on the reservation in South
Dakota. The niece has developed a trusting relationship with
her counselor, with whom she should continue working to
process her grief from her traumatic history and to decrease
Both children are doing well in their current placements,
where they are growing up as part of their Indian family in
Maine, that is, with strong ties to the son's
half-siblings/the niece's cousins. They have also been
exposed to Indian culture while living with the mother.
The children were the subject of prior child protection
proceedings initiated in 2014. During those proceedings, the
Tribe also moved to transfer jurisdiction to the Tribal
Court, but the mother opposed the transfer, and the court
(Bridgton, Darvin, J.) also found good cause to deny
the requested transfer. The GAL opined that the mother's
support of the motion to transfer in the present matter is
premised on her wish to "circumvent the safety
requirements of DHHS in ...