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Indian Child Welfare Act not applicable.

Byline: Rebecca M. Lightle

The court of appeals affirmed that the Indian Child Welfare Acts protections were not triggered by Appellant Jocelyn Lee Geouges assertion that her child might be of Cherokee descent. In this case, Geouge challenged the adoption of her biological daughter, L.T., by Dustin Griffith and Tiffany Vadella-Griffith. Geouge gave birth to L.T. while incarcerated following various convictions arising from her opioid addiction. L.T.s biological father who was raising their three other children together initially purported to take custody of L.T., but unilaterally transferred physical custody almost immediately to the Griffiths. Approximately one month after L.T.s birth, her biological father petitioned the JDR court to accept his consent for adoption and transfer of custody to the Griffiths. Geouge requested that custody be awarded to one of her family members and sought weekly visitation to occur at the prison. The JDR court denied this request, accepted the fathers consent, and awarded custody to the Griffiths. Geouge appealed to the circuit court, which set a trial de novo. Geouge moved to continue the matter until after her scheduled release from prison (one month after trial), enumerating several ways in which her life circumstances would be changed upon her release. The court denied the motion, noting from the bench that I dont think this case can be dragged on indefinitely to see how [Geouge] does. At the outset of trial, Geouge raised the issue of potential application of the Indian Child Welfare Act, asserting that Geouges father was of Cherokee descent. The court noted that Geouge conceded that the Acts requirements had not been met, and noted that she bore the burden to show that the Act applied. After the trial concluded, the circuit court entered a final order determining, among other things, that the Act did not apply and granting legal and physical custody to the Griffiths. This appeal followed. Its assignments of error include: (1) failure to determine that the appellees had complied with the Indian Child Welfare Act; (2) determination that Geouge was withholding consent for adoption contrary to the best interests of her child; and (3) denying Geouges request for continuance until a time certain after her release from incarceration. The court of appeals affirms the trial courts decision as to each of these issues. IndianChildWelfareAct Included in the Acts protections is a notice requirement under 25 U.S.C. 1912(a), whereby the parent or custodian of an Indian child, as well as the tribe, are entitled to notice of any involuntary proceeding in a state court, where the court knows or has reason to know that an Indian child is involved. Under 25 U.S.C. 1903, an Indian child must be either a member of a federally-recognized Indian tribe, or eligible for membership as the biological child of a member. Without the required notice, a state courts actions are subject to potential invalidation. The party invoking the Act bears the burden of establishing that the Act applies, though this burden has a low bar the invoking party need not actually prove that the child is an Indian child before the Act is implicated. As evident by the inclusion of the reason to know language in the statute, Congress clearly intended the notice provisions to be effective in situations where there is still a question of the childs status. Further, the associated regulations expressly contemplate situations in which a court has reason to know the child is an Indian child but the court does not have sufficient evidence to make a determination. In that situation, the state court is to treat the child as an Indian child. Under 25 C.F.R. 23.7(c), all that is required for the Acts notice provisions to apply is for a party or counsel to assert in good faith a belief that the child is an Indian child. But in this case, neither Geouge nor her counsel ever made such an assertion. Geouge never took steps to develop any information that would allow her to allege that L.T. is rather than might be an Indian child. By contrast, the appellees though they did not bear the burden to show that the Act applied identified the three federally-recognized Cherokee tribes and the factors that each tribe considers in determining membership and eligibility. They also contacted the tribes, provided information on Geouge and Geouges father, and were told that L.T. was not eligible for membership. Accordingly, L.T. was not an Indian child for purposes of the Act, and the circuit court did not err in determining that the Acts notice provisions did not apply. Consenttoadoption The circuit court did not err in concluding that Geouge withheld consent to adoption contrary to L.T.s best interests. Although consent of the birth parents is generally necessary for adoption in Virginia, Code 63.2-1203 allows for adoption without parental consent if such consent is withheld contrary to the best interests of the child. To make this finding, Code 63.2-1205 sets forth eight factors that the circuit court must consider among all relevant factors. These factors focus on both the parent and child and, therefore, compel a court to consider whether a parents unfitness would be harmful to the childs welfare. So long as the circuit court considered the required factors, the court of appeals can reverse its conclusions only if they are beyond the pale of reasonableness. In this case, they were not. Over the course of a two-day trial, the circuit court heard the testimony of more than 20 witnesses and considered more than 30 exhibits, ranging from medical records to home visit reports. This evidence including testimony about Geouges history of drug problems, its impact on her other children, and the positive care environment fostered by the Griffiths contained support for the circuit courts factual findings, and nothing in the statutory scheme required the court to make different findings. Thus, the appellate court declined to second-guess the circuit courts judgment regarding the statutory factors. Denialofcontinuance This court reverses a circuit courts ruling on a motion for continuance only upon a showing of abuse of discretion and resulting prejudice to the movant. Here, Geouges loss of her relationship with her daughter while certainly significant is not prejudicial for purposes of the proceedings. Geouge was able to participate in the circuit court proceedings, and her interests were ably represented by counsel. She appeared, testified, had witnesses called on her behalf, filed numerous motions, and made substantial arguments. Even had the continuance been granted, the historical facts would have been part of the case, and Geouges future fitness as a parent would still have been largely a matter of speculation. The circuit courts ultimate ruling against her was the result of its determination of the facts at hand, not the result of the denial of her continuance request. Therefore, the court could not say on appeal that denying the continuance was error. Affirmed. Geouge v. Traylor, Record Nos. 0559-17-2, 0737-17-2, Dec. 27, 2017, Va. App. (Russell); Powhattan Cir. Ct. (Cella). Anne L. Roddy for Appellant; Colleen M. Quinn for Appellee. VLW 017-7-321; 33 pp.

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Title Annotation:Virginia
Author:Lightle, Rebecca M.
Publication:Virginia Lawyers Weekly
Date:Jan 31, 2018
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