## Facts

- A mother and father had two children, M.S. and K.S.
- The father and both children were enrolled members of the Puyallup Tribe of Indians (the Tribe), but the family was not domiciled on a reservation.
- In August 2004, the Oklahoma Department of Human Services filed an emergency deprived-child petition in state juvenile court and removed M.S. and K.S. from the home.
- The children were placed in a state-licensed, non-Native substitute-care home, and the Tribe moved to intervene.
- The State and the Tribe agreed that if reunification efforts failed, the children would be placed with Puyallup substitute caregivers.
- Reunification efforts continued until March 2006, when the State sought termination of parental rights; the juvenile court terminated the parents’ rights in June 2006.
- After termination, the State notified the Tribe that it intended to remove the children from the non-Native substitute-care home.
- The substitute caregivers objected and obtained a hearing, but did not serve the Tribe with notice; the Tribe learned of the hearing by chance and was unable to participate effectively.
- The juvenile court granted the substitute caregivers’ request, and the children remained in that home.
- The Tribe worked with the State to place the children with a Puyallup relative, but that relative later died.
- The Tribe then filed an ICWA motion asking the juvenile court to transfer jurisdiction to tribal court under 25 U.S.C. § 1911(b), or, alternatively, to change the children’s placement to another Puyallup relative.
- The juvenile court denied transfer, finding “good cause” to keep the case because the State had exercised jurisdiction for about two years, the children had relationships in Oklahoma, and evidence was located in Oklahoma.
- The Court of Civil Appeals affirmed, reasoning that the Tribe should have sought transfer earlier (when the children were first removed or when termination was sought).
- The Oklahoma Supreme Court granted certiorari.

## Issues

1. Under ICWA, did “good cause” exist to deny the Tribe’s motion to transfer jurisdiction to the Puyallup tribal court when the children were not domiciled on a reservation?
2. May a state court treat the passage of time in state court and the children’s relationships with their non-Native substitute caregivers as “good cause” to deny an ICWA transfer?
3. Can a tribe seek transfer of jurisdiction after parental rights have been terminated when the child-custody proceeding continues into post-termination placement and permanency stages?

## Decision

- The Oklahoma Supreme Court vacated the Court of Civil Appeals’ opinion.
- The Court reversed the juvenile court’s order denying the Tribe’s motion to transfer jurisdiction.
- The Court remanded for further proceedings consistent with ICWA’s transfer standards.
- The Court held that the reasons relied on by the juvenile court—length of time in state court, the children’s relationships in Oklahoma, and the location of evidence—did not amount to “good cause” on this record.
- The Court rejected the view that the Tribe forfeited transfer by not seeking it earlier; the Tribe’s request was not barred merely because parental rights had been terminated while the case remained ongoing.

## Legal Principles

- In an ICWA child-custody proceeding involving an Indian child not domiciled on a reservation, the state court must transfer the case to tribal court upon petition by the child’s parent, Indian custodian, or tribe, unless (i) a parent objects, (ii) the tribal court declines, or (iii) the state court finds “good cause” to deny transfer. (25 U.S.C. § 1911(b))
- “Good cause” to deny transfer is construed narrowly; it cannot rest solely on delay in requesting transfer or on conditions that predictably arise while the case proceeds in state court.
- The existence of bonds and relationships created in a non-preferred substitute-care setting is not, by itself, a valid basis to deny transfer, because using such bonds to defeat transfer would undercut ICWA’s allocation of authority to tribal courts.
- A tribe’s ability to seek transfer is not automatically cut off by termination of parental rights when the child-custody proceeding continues and the court is still making placement and permanency determinations.
- ICWA requires meaningful notice and an opportunity for the tribe to participate in proceedings affecting custody and placement; lack of notice to a tribe is relevant to whether the process complied with ICWA’s requirements.

## Conclusion

The Oklahoma Supreme Court held that the juvenile court wrongly denied the Puyallup Tribe’s ICWA motion to transfer jurisdiction based on elapsed time in state court, the children’s Oklahoma relationships, and the location of evidence, and it rejected the idea that the Tribe’s request was untimely simply because it came after termination of parental rights; the Court vacated the intermediate appellate decision, reversed the denial of transfer, and remanded for further proceedings under the proper ICWA framework.


In re M.S., 237 P.3d 161 (2010)